Opinion
Civil Action No. 19-cv-02830-RM-KLM
08-24-2020
ANDREW JOHNSON, Plaintiff, v. JOE PELLE, EUGENE MARTINEZ, JEFF GOETZ, TIMOTHY OLIVEIRA, and LYDIA MITCHELL, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendants' Motion to Dismiss [#20] (the "Motion"). Plaintiff, who proceeds as a pro se litigant, filed a Response [#27] in opposition to the Motion [#20], Defendants filed a Reply [#28], and Plaintiff filed a Surreply [#32], with the Court's permission. Minute Order [#33]. The Motion [#20] has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1. See [#21]. The Court has reviewed the Motion, the Response, the Reply, the Surreply, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#20] be GRANTED in part and DENIED in part.
"[#20]" 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.
The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-521 (1972). In doing so, the Court should not be the pro se litigant's advocate, nor should the Court "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
I. Background
For the purposes of resolving the Motion [#20], the Court accepts as true all well-pled, as opposed to conclusory, allegations made in Plaintiff's Complaint [#1]. See Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
This case stems from two underlying criminal cases. On May 17, 2017, Plaintiff entered into a plea agreement in the first criminal case—Case No. 2017CR360—whereby he pled guilty to a felony menacing charge in Larimer County Court. Motion [#20] at 5; Defs.'s Ex. A [#20-1] at 3 (Register of Actions in Case No. 2017CR360); Response [#27] at 1. Pending sentencing in that matter, Plaintiff posted bond and was released with an ankle monitor. Defs.'s Ex. A [#20-1] at 3; Response [#27] at 2. However, on September 29, 2017, a warrant for Plaintiff's arrest was issued based on a bond violation, and thereafter he was detained without bond pursuant to a court order in Case No. 2017CR360. Motion [#20] at 2; Defs.'s Ex. A [#20-1] at 2. Accordingly, Plaintiff was being held without bond in Larimer County Jail when, on October 19, 2017, Plaintiff was charged with a separate criminal count in Case No. 2017CR2100 and subsequently moved to and detained in Boulder County Jail. Compl. [#1] ¶ 1. Plaintiff's claims pertain to his detention at Boulder County Jail beginning October 19, 2017. It appears that bond was set in this case on October 23, 2017. Defs.'s Ex. D [#20-4] at 4.
The Court may take judicial notice of records filed in a state court action, including court administrative records, on a Fed. R. Civ. P. 12(b)(6) motion. See Stack v. McCotter, 79 F. App'x, 383, 391-92 (10th Cir. 2003) (stating that the court may take judicial notice of state district court docket sheet); Rose v. Utah State Bar, 471 F. App'x 818, 820 (10th Cir. 2012) (holding that a court may take judicial notice of state-court disciplinary proceedings without converting a motion to dismiss into one for summary judgment); St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (holding that federal courts may take judicial notice of proceedings in other courts, both within and outside of the federal judicial system). Thus, the Court may consider the four exhibits attached to Defendants' Motion [#20] as Exhibits A-D. See [#20-1, #20-2, #20-3, #20-4] and the one exhibit attached to Defendants' Reply [#28] as another Exhibit A. See [#28-1].
Plaintiff was not sentenced in Case No. 2017CR360 until December 20, 2017. Motion [#20] at 2.
On October 20 and October 23, 2017, the Larimer County Court issued two writs of prosequendum in connection with 2017CR360 to bring Plaintiff before the court on October 27, 2017. Id. ¶ 3. However, Plaintiff alleges that Defendant Joe Pelle ("Pelle") "ignored" the writs from Larimer County Court until November 17, 2017, while Plaintiff remained incarcerated without bond in Boulder County. Id. ¶¶ 4-5. Plaintiff argues that "[t]his action amounted to punishment while [Plaintiff] was still a pretrial detainee." Id. ¶ 5. Plaintiff was eventually brought before the Larimer County Court on November 17, 2017, and Plaintiff's bond was reinstated at this hearing. Id. ¶ 6. Thus, based on the Complaint [#1] and the limited state court record provided, it appears that, as of November 17, Plaintiff was permitted to be released on bond based on orders from the Boulder County Court and the Larimer County Court.
However, that same day, Defendant Timothy Oliveira ("Oliveira"), Defendant Jeff Goetz ("Goetz"), Defendant Lydia Mitchell ("Mitchell"), and Defendant Eugene Martinez ("Martinez") allegedly had a meeting where they collectively decided to move Plaintiff to Arapahoe County Jail in the absence of any legally justifiable reason. Id. ¶ 7. This move required a "courtesy hold" to be placed on Plaintiff, and, therefore, Plaintiff was not permitted release on bond despite his efforts to "bond out" twice around November 21 and November 22, 2017. Id. ¶¶ 8-9.
Plaintiff asserts that he was "treated deferent [sic] from similarly situated pretrial detainees[.]" Id. ¶ 16. Defendant Pelle allegedly authorized Plaintiff's "removal from Boulder County Jail custody [ ] several seperate [sic] times between November 2017 to April 2018" without any court order. Id. ¶ 10. This resulted in Plaintiff being shuttled back and forth between Boulder County Jail and Arapahoe County Jail, during which Plaintiff alleges he spent over sixty hours in transport. Id. ¶ 14. This impeded Plaintiff's ability to receive visitors, to receive his prescribed medication, to eat quality meals, and to receive enough sleep. Id. Moreover, Plaintiff alleges this also made it more difficult for him to communicate with his attorneys, to access discovery, and, ultimately, to devise a legal defense. Id. ¶ 11, 14.
Accordingly, on October 2, 2019, Plaintiff filed this lawsuit against Defendants, each in their official and individual capacities, pursuant to 42 U.S.C. § 1983. Id. at 2-3. As discussed further below, the Court construe's Plaintiff's Complaint [#1] as asserting claims against Defendants for violating his due process and equal protection rights under the Fourteenth Amendment. See id. ¶¶ 13, 16; see generally Response [#27] at 1, 4, 7-8. Plaintiff seeks both compensatory and punitive damages for these alleged violations in the respective amounts of $60,000 and $2,000 per Defendant. Compl. [#1] at 6. Defendants seek to dismiss all claims by arguing that Plaintiff "fails to state any plausible claims for relief" under Fed. R. Civ. P. 12(b)(6). Motion [#20] at 2.
II. Standard of Review
The purpose of a motion to dismiss pursuant to Rule 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) (stating that a complaint may be dismissed for "failure to state a claim upon which relief can be granted"). To withstand a motion to dismiss pursuant to Rule 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 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 for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover, "[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 omitted).
"The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citation omitted). As the Tenth Circuit has explained, "the mere metaphysical possibility that [the] plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that [the] plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). However, "[t]he court's function on a 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).
III. Analysis
Plaintiff argues that Defendants violated his constitutional rights under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. See generally Compl. [#1] ¶¶ 9, 13, 16. In response, Defendants argue that Plaintiff has failed to plausibly allege his claims, and, therefore, the Complaint [#1] should be dismissed. Motion [#20] at 2, 4. To state a 42 U.S.C. § 1983 claim, Plaintiff must allege facts establishing the deprivation of a right secured by the Constitution or laws of the United States and that the deprivation was committed under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1143 (10th Cir. 2014).
The first issue that the Court must address is deciphering Plaintiff's intended claims underlying the asserted constitutional violations. The Complaint makes a single claim titled "Violation of Right to Bond & 14th Amendment U.S. Const." Compl. [#1] at 5. In the Motion, Defendants interpret this claim along with Plaintiff's allegations as essentially asserting four claims: (1) due process violation of right to bail; (2) due process deprivation of state-created liberty interest; (3) due process violation of right of access to the courts; and (4) equal protection violation. Motion [#20] at 4, 8, 11, 14. Plaintiff addresses Defendants' various legal arguments in his Response [#27] but does not make explicitly clear until his Surreply that the purported right-to-bail is really only an aspect of his liberty-interest claim. Surreply [#32] at 2 (titling one section: "Johnson's Liberty Interest Claim (which Defendants keep changing to right to bail claim"). Plaintiff does not appear to take issue with the characterization of his access-to-the-courts and equal protection claims. Id. at 1-2, 4-5. Thus, the Court construes Plaintiff's complaint to allege claims based on (1) a due process violation of right to access to the courts, (2) an equal protection violation, and (3) a due process liberty-interest violation.
A. Individual Capacity
Defendants assert that they are entitled to qualified immunity on Plaintiff's claims. Motion [#20] at 6-8, 11, 14, 15. Qualified immunity, in certain circumstances, protects government officials from litigation when they are sued in their individual capacities. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 814-18 (1982). A government official is entitled to qualified immunity from liability for civil damages in his or her individual capacity when his or her allegedly unlawful conduct did not violate any of the plaintiff's statutory or constitutional rights that (1) were "clearly established" at the time of the conduct, and (2) would have been known to a reasonable person in the official's position. Id. at 818 (stating that "government officials performing discretionary functions generally are shielded 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"); see also Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that although qualified immunity determination involves a two-part inquiry, if the plaintiff fails either inquiry reviewed in any order, no further analysis need be undertaken and qualified immunity is appropriate). The Supreme Court has stated that "[f]or executive officials in general . . . our cases make plain that qualified immunity represents the norm." Harlow, 457 U.S. at 807. Thus, a government official is entitled to qualified immunity in "[a]ll but the most exceptional cases." Harris v. Bd. of Educ. of Atlanta, 105 F.3d 591, 595 (11th Cir. 1997).
"Ordinarily, a plaintiff may show that a particular right was clearly established at the time of the challenged conduct by identifying an on-point Supreme Court or published Tenth Circuit decision; alternatively, the clearly established weight of authority from other courts must have found the law to be as he maintains." A.M. v. Holmes, 830 F.3d 1123, 1135 (10th Cir. 2016) (internal quotation marks and alterations omitted). "However, we do not always require case law on point, and the Supreme Court has warned that officials can still be on notice that their conduct violates established law even in novel factual circumstances." Id. (internal quotation marks and citations omitted). "We have therefore adopted a sliding scale to determine when law is clearly established." Id. "The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation." Id. at 1135-36. It is not necessary to show that "the very action in question has previously been held unlawful, [but] in the light of pre-existing law the unlawfulness must be apparent." Id. at 1136 (internal alterations and quotation marks omitted).
Recently, in Ali v. Duboise, 763 F. App'x 645, 649-50 (10th Cir. 2019), the Tenth Circuit Court of Appeals addressed the issue of qualified immunity and "clearly established law." Affirming the district court's determination that the law was not clearly established (and therefore that the jail official-defendant was entitled to qualified immunity), the Tenth Circuit emphasized that "clearly established law should not be defined at a high level of generality" but must be "particularized to the facts of the case. " Ali, 763 F. App'x at 650 (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (internal quotation marks omitted)). The Tenth Circuit also emphasized that "[a]lthough a plaintiff need not identify a case directly on point, existing precedent must have placed the statutory or constitutional question beyond debate." Ali, 763 F. App'x at 650 (internal quotation marks and ellipsis omitted) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)).
1. Access to the Courts
Plaintiff argues that Defendants impeded his access to the courts. This argument rests partly on Plaintiff's inability to be heard before the Larimer County Court on October 27, 2017, after the court issued a writ of prosequendum, but it also involves Plaintiff's inability to effectively communicate with legal counsel both at this time and for months thereafter, allegedly due to Defendants' actions. Compl. [#1] ¶¶ 3-5, 14, 17; Response [#27] at 3-4. Defendants argue that Plaintiff failed to show how he was actually injured by not being able to access the courts or counsel, especially because Plaintiff was not completely deprived of these rights, and, therefore, Plaintiff's claim must be dismissed. Motion [#20] at 11-13.
"Prison inmates have a constitutional right to meaningful access to the courts." Redmon v. Zavaras, No. 09-cv-02133-WJM-CBS, 2011 WL 2728466, at *4 (D. Colo. June 16, 2011). Moreover, "[a]ccess to counsel is another means to ensure access to the courts." Toevs v. Milyard, No. 12-cv-02532-BNB, 2013 WL 1151885, at *2 (D. Colo. Mar. 18, 2013). However, this right is not completely unrestricted; rather, this right only assures meaningful access. See Twyman v. Crisp, 584 F.2d 352, 358-59 (10th Cir. 1978).
a. Access to Counsel
The Court begins with Plaintiff's allegations regarding access to counsel. Plaintiff's Complaint [#1] primarily argues that Defendants impeded his ability to communicate with counsel by repeatedly transferring him between Boulder County Jail and Arapahoe County Jail. See Compl. [#1] ¶¶ 11, 14, 17. This allegedly resulted in Plaintiff being unable to "communicate with his attorneys, or help formulate his defence [sic]." Id. ¶ 11. Although this conclusory statement is reiterated multiple times in the Complaint [#1], Plaintiff does not allege any facts explaining how the transfers resulted in his inability to communicate with counsel, i.e., Plaintiff does not allege any facts supporting actual injury. In fact, based on what is before the Court, it appears that Plaintiff did indeed have meaningful access to counsel for both underlying criminal cases.
In the older Larimer County case, 2017CR000360, Heather Siegel of the Fort Collins Public Defenders Office entered her appearance on behalf of Plaintiff on February 23, 2017. See [#20-1] at 4. On July 11, 2017, Patrick Esser of Schwartz and Waible LLC entered his appearance on behalf of Plaintiff. See id. at 3. He appears to have represented Plaintiff at least through December 21, 2017, after which it appears Plaintiff proceeded pro se for purposes of his appeal. See id. at 1-3. Despite having counsel, Plaintiff appears to have filed a letter directly with the court on December 7, 2017. See [#20-1] at 2. Plaintiff also filed a habeas corpus petition on February 9, 2018, and a Motion to Request Time Extension for Review of Ruling on February 28, 2018. See id. at 1.
In the newer Boulder County case, 2017CR02100, Jennifer Chenu of the Boulder Public Defenders Office entered an appearance on behalf of Plaintiff on October 26, 2017. See [#20-4] at 4. Morgan Minster of the Boulder Public Defenders Office also entered his appearance on behalf of Plaintiff on February 6, 2018. See id. at 3. It appears that they represented Plaintiff at least through May 11, 2018 (after trial concluded in this case). See id. at 1-4. Despite having counsel, Plaintiff appears to have filed letters or other documents directly with the court on November 29, 2017, December 22, 2017, January 9, 2018, February 12, 2018, March 5, 2018, March 30, 2018, April 3, 2018, and May 3, 2018. Id.
In Lewis v. Casey, 518 U.S. 343, 350-51 (1996), the United States Supreme Court held that the right of access to the courts was the right to "the means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." In other words, the right of access to the courts "guarantees no particular methodology but rather the conferral of a capability—the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts." Id. at 356. Thus, Plaintiff must prove that Defendants' actions caused him actual injury, i.e. that they "hindered his efforts to pursue a legal claim" or, in this situation, his criminal defense. See id. at 351-52; see also Twyman, 584 F.2d at 357-59 (stating that the plaintiff must show that he has somehow been prejudiced in presenting his case by his inability to access the courts); Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir.1996) (holding that "an inmate must satisfy the standing requirement of 'actual injury' by showing that the denial of legal resources hindered the prisoner's efforts to pursue a nonfrivolous claim").
Here, Plaintiff has provided no allegations of any specific injury or impact that Defendants' alleged actions had on any particular case, which is fatal to his claim. See, e.g., Simkins v. Bruce, 406 F.3d 1239, 1243-44 (10th Cir. 2005) (recognizing a sufficient showing of actual injury where prisoner demonstrated specific impact on prosecution of a particular case). To raise a claim for denial of access to the court, Plaintiff must show that Defendants' actions "resulted in 'actual injury' by 'frustrating,' or 'hindering his efforts to pursue a nonfrivolous legal claim.'" Id. at 1243 (quoting Lewis, 518 U.S. at 351-53 (internal brackets omitted)). Conclusory allegations of injury do not suffice. See Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th Cir. 1999).
The Court notes that there is no indication in the Complaint [#1] that Plaintiff was denied all communication with counsel for an extended period. Regarding the period between November 2017 and April 2018, Plaintiff alleges that the "unnecessary shuttling" between Boulder County Jail and Arapahoe County Jail affected "his ability to send or receive mail, communicate with his attorneys, or help formulate his defense." Compl. [#1] at 7. He states that these transfers "made it harder for visitors to come visit, including family and attorneys." Id. He asserts that the transfers "removed his ability to communicate with courts including effectively filing a habeas corpus challenging his housing in Arapahoe County, impeded his ability to solicit attorneys/legal representation, [and] complete loss of communication with his Larimer County counsel in cases 17CR360 and 17CR462." Id. He further states that these transfers "took away his access to discovery (he had this access in Boulder County but not in Arapahoe County"). Id. at 8. He also says that he "could not get paper to write letters or postage to mail them, impeding communication with family & attorneys." Id. Finally, he states that he "was not able to discuss trial defenses with his attorney until after his pretrial motions hearing on case # 17CR2100." Id.
None of these allegations (many of which are conclusory due to the lack of specific details) show that Plaintiff suffered an actual injury. In Simkins v. Bruce, 406 F.3d at 1243-44, the Tenth Circuit Court of Appeals held that the plaintiff showed an actual injury sufficient to meet the Lewis standard on an access-to-the-courts claim regarding the non- delivery of his legal mail where he showed that his failure to receive the summary judgment motion and court order in the underlying action resulted in the plaintiff's admission of the defendants' version of the facts, the plaintiff's inability to argue the legal issues, and the plaintiff's loss of an opportunity to appeal. Given this showing of actual injury, the Circuit emphasized that the plaintiff did not have to further "prove a case within a case to show that the claim hindered or impeded by the defendant necessarily would have prevailed," but only that the claim was not frivolous. Simkins, 406 F.3d at 1244.
Here, to the contrary, Plaintiff provides allegations of a variety of impediments, but he fails to show how any of these impediments actually affected either of his underlying criminal cases. In fact, courts have found much greater restrictions may not rise to the level of a constitutional violation. See, e.g., Hardesty v. Saline Cty. Jail, No. 19-3211-SAC, 2020 WL 1547823, at *1-3 (D. Kan. Apr. 1, 2020) (holding that the plaintiff failed to adequately allege that the jail staff prevented his access to the courts or caused him an actual injury even where the plaintiff alleged that he was not allowed to call his attorney, that he was denied visitation rights, that he could only contact his attorney by mail, and that he was charged for paper and envelopes). Thus, although Plaintiff's access to the court may have been impeded, he has not shown that he was denied "meaningful access," i.e., a "reasonably adequate opportunity" to access the courts, due to the fact that he had trial counsel throughout the duration of his lawsuits (prior to his appeal, at least), and in the absence of any concrete allegations regarding actual injury to his defense in the criminal cases. See Twyman, 584 F.2d at 358-59; Lewis v. Casey, 518 U.S. at 350-51. This applies equally to Plaintiff's brief statement regarding his inability "to communicate with courts including effectively filing a habeas corpus challenging his housing in Arapahoe County," given that it is clear that Plaintiff did file a habeas corpus petition, see [#20-1] at 1, and given that there is no indication from the Complaint [#1] regarding how his filing was somehow ineffective or how delay, if any, in the filing resulted in "actual injury."
Accordingly, the Court finds that Defendants are entitled to qualified immunity, and the Court recommends that Defendants' Motion [#20] be granted to the extent that this claim against Defendants in their individual capacities for denying his access to counsel be dismissed without prejudice for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990).
b. Access to the Larimer County Court Hearing
Plaintiff's Response [#27] seems to argue that Plaintiff's claim is really based on Defendant Pelle ignoring the Larimer County Court's writ of prosequendum for a period of several weeks. Response [#27] at 3-4. Plaintiff argues there that his "actual injury" was the "impediment, delay [and] status of no bond when his bond could have been in full effect." Id. at 4. Throughout this period, Plaintiff remained "un-bondable[,]" but the Larimer County Court reinstated Plaintiff's bond on November 17, 2017. Id. ¶ 6.
Regarding this period from October 27, 2017 (the date of Plaintiff's missed hearing), to November 17, 2017 (the date the Larimer County Court permitted Plaintiff's release on bond), Plaintiff alleges that, on October 20 and 23, 2017, the Larimer County Court "made out writs to bring [Plaintiff] in front of their court on October 27th, 2017." Compl. [#1] at 5. Plaintiff alleges that Defendant Pelle "ignored, delayed, or denied the writ until November 17, 2017." Id. The October 27, 2017 motions hearing was "Continued by Parties," as it had been twice before on October 13, 2017 (prior to Plaintiff being held at the Boulder County Jail) and on October 20, 2017 (Plaintiff's first full day at Boulder County Jail). Defs.'s Ex. A [#28-1] at 1. Plaintiff had counsel in this case at this time, see [#20-1] at 3, and Plaintiff does not allege that his counsel did not agree to and/or move for the continuance of the October 27, 2017 hearing. See [#28-1] at 1. It is also clear from the docket that the October 27, 2017 motions hearing was reset to November 17, 2017, and that there are no other intervening dates on which Plaintiff was expected to appear in court. See [#28-1].
It is clear from the Larimer County Court's docket that only one writ was issued around this time. See [#20-1] at 2. The writ was requested on Friday, October 20, 2017, and issued by the court on Monday, October 23, 2017. See id. Nevertheless, this does not materially impact the Court's analysis of this claim.
Defendant Pelle is the only Defendant Plaintiff names here as having taken (or having failed to have taken) any type of action. Compl. [#1] at 5. Thus, in the absence of any allegations against Defendants Martinez, Goetz, Oliveira, and Mitchell, the Court finds that Defendants Martinez, Goetz, Oliveira, and Mitchell are entitled to qualified immunity on this portion of Plaintiff's claim, for failure to state a claim. See Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006) (holding that a plaintiff must show that the defendant interfered with the plaintiff's constitutional rights).
Regarding Defendant Pelle, "[a]ny deliberate impediment to access [to the courts], even a delay of access, may constitute a constitutional deprivation." Green v. Johnson, 977 F.2d 1383, 1389 (10th Cir.1992). Thus, solely for purposes of this analysis, the Court finds that Plaintiff may have sufficiently alleged the violation of a constitutional right by Defendant Pelle. However, even so, the Court finds that Defendant Pelle is entitled to qualified immunity because Plaintiff has directed the Court's attention to no case (and the Court has found none) in which a jail official was found to have violated a detainee's due process right of access to the courts where a single hearing was missed and where the detainee failed to allege any actual injury to his underlying case as a result of that missed hearing. See, e.g., Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990) (stating that "an isolated incident, without any evidence of improper motive or resulting interference with [Plaintiff's] right to counsel or to access to the courts, does not give rise to a constitutional violation"); see also Garcia v. Lawrence, 118 F. App'x 436, 439 (10th Cir. 2004) ("A single instance of removal of [plaintiff's] legal materials for a few hours does not constitute a deprivation of [plaintiff's] right of access to the courts."). Thus, the Court finds that Defendant Pelle is entitled to qualified immunity on this claim.
Accordingly, the Court finds that Defendants are entitled to qualified immunity, and the Court recommends that Defendants' Motion [#20] be granted to the extent that this claim against Defendants in their individual capacities for denying his access to the Larimer County Court be dismissed with prejudice for failure to state a claim under Fed. R. Civ. P. 12(b)(6). See Reynoldson, 907 F.2d at 127.
2. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment declares that "[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws." In other words, government actors may not treat similarly situated persons differently without a lawful justification. See SECSYS, LLC v. Vigil, 666 F.3d 678, 684 (10th Cir. 2012). Commonly this applies to class-based discrimination, i.e. treating a person differently because he or she is a member of a protected class, but here Plaintiff is alleging that he has been singled out as part of a "class of one." See Engquist v. Oregon Dep't of Agr., 553 U.S. 591, 601 (2008). The Supreme Court has "recognized successful equal protection claims brought by a 'class of one,' where the plaintiff alleges that [ ]he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
To plausibly allege an equal protection claim for a class of one, Plaintiff must show: (1) that he was "intentionally treated differently from others similarly situated" in all material respects; and (2) "that there is no rational basis for the difference in treatment[,]" i.e., the government action is abusive and not related to any legitimate objective. Olech, 528 U.S. at 564; Jicarilla Apache Nation v. Rio Arriba County, 440 F.3d 1202, 1210 (10th Cir. 2006); see also Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011). Defendants argue that Plaintiff "fails to meet both prongs" of this test, and "therefore his equal protection claim must be dismissed as a matter of law." Motion [#20] at 15. For the reasons stated below, the Court agrees and finds that Plaintiff has failed to provide sufficient allegations to state an equal amendment class-of-one claim.
Regarding the first element, "[t]he allegations necessary to establish this level of similarity will vary depending on the nature of the case, and '[t]he more variables involved in the government action at issue, the more specifics the plaintiff will need to allege to allow for meaningful comparison between the plaintiff's (negative) experience and the (positive) experiences of others.'" Rucker v. Gilmore, No. 13-cv-03028-JAR, 2015 WL 506210, at *9 (D. Kan. Feb. 6, 2015) (quoting Haik v. Salt Lake City Corp., 567 F. App'x 621, 632 (10th Cir. 2014)). "Because 'it is exceedingly difficult to demonstrate that any difference in treatment is not attributable to a quirk of the plaintiff or even to the fallibility of administrators whose inconsistency is as random as it is inevitable . . . courts have imposed exacting burdens on plaintiffs to demonstrate similarity in class-of-one cases.'" Shifrin v. Toll, 483 F. App'x 446, 449 (10th Cir. 2012) (quoting Jicarilla Apache Nation, 440 F.3d at 1213). Here, Plaintiff alleges that Defendants treated him differently "from similarly situated pretrial detainees by removing him from Boulder County Jail." Compl. [#1] ¶ 16. Plaintiff clarifies this statement in his Response [#27] by alleging that he "was the only individual being housed in Arapaho[e] County Jail for Boulder." Response [#27] at 8. Nevertheless, Plaintiff pleads no facts that support how other pretrial detainees were similarly situated to him in any material respect nor how these other pretrial detainees were treated more favorably than Plaintiff. In other words, the mere fact that the other individuals were also Boulder County pretrial detainees does not show that they were similarly situated to Plaintiff, and the mere fact that they got to stay in Boulder but Plaintiff was moved to Arapahoe County does not show that they were treated more favorably. Therefore, Plaintiff fails to plausibly allege the first element of his equal protection claim.
Accordingly, Defendants are entitled to qualified immunity, and the Court recommends that Defendants' Motion [#20] be granted to the extent that Plaintiff's claims against Defendants in their individual capacities under the equal protection clause of the Fourteenth Amendment be dismissed without prejudice for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Reynoldson, 907 F.2d at 127.
3. Liberty Interest
The most complicated of Plaintiff's claims to decipher is his due process liberty-interest violation. The Due Process Clause of the Fourteenth Amendment declares that "[n]o state shall . . . deprive any person of life, liberty, or property, without due process of law[.]"
Based on Plaintiff's statements in the Complaint [#1], coupled with Plaintiff's clarifications in his Response [#27] and Surreply [#32], the Court finds that the intended thrust of Plaintiff's claim is neither of the issues directly addressed by Defendants in the Motion [#20], although, given the Complaint [#1], Defendants could certainly be forgiven their confusion regarding Plaintiff's due process claim. Rather, liberally reading the Complaint [#1], the primary issue is that Plaintiff was permitted by both the Larimer County Court and the Boulder County Court to be released on bond, but Defendants chose not to release Plaintiff on bond in the alleged absence of any legally justifiable reason. Compl. [#1] at 6-7; Response [#27] at 3-7; Surreply [#32] at 2-4. However, in the interest of completeness, the Court first briefly addresses Defendants' arguments regarding (1) collateral estoppel and (2) the absolute right to bail before turning to the primary issue just mentioned.
a. Collateral Estoppel
In this lawsuit, Plaintiff does not appear to be directly arguing that his transfers between Arapahoe County Jail and Boulder County Jail were, in and of themselves, violative of his due process rights, as opposed to being an unnecessary consequence/injury from Defendants' alleged failure to release Plaintiff on bond in the absence of any legally justifiable reason. However, to the extent that Plaintiff may be asserting that the transfers themselves violated his rights, the Court agrees with Defendants that such a claim is barred by issue preclusion.
Defendant Pelle allegedly transferred Plaintiff between Boulder County Jail and Arapahoe County Jail "several seperate [sic] times between November 2017 to April 2018" "without lawfully applying for or recieving [sic] an order from any court[.]" Compl. [#1] ¶ 10. Plaintiff states that Colo. Rev. Stat. §§ 13-45-111 and 17-26-119 create a liberty interest which requires Plaintiff to be housed in the "nearest common jail" to Boulder County. Id. ¶ 13. Defendants' decision to transfer Plaintiff to Arapahoe County Jail without legally justifiable grounds allegedly "effected this liberty interest without a rational governmental intrest [sic] therefor[e] punishing [Plaintiff] before trial." Id. Here, Defendants argue that Plaintiff's claim is barred by issue preclusion because a nearly identical claim has already been adjudicated in state district court. Motion [#20] at 8-11; Reply [#28] at 3.
Under Colorado law, issue preclusion "bars relitigation of an issue that is identical to an issue that has been actually litigated and necessarily adjudicated in a prior proceeding." Bristol Bay Prod., LLC v. Lampack, 312 P.3d 1155, 1159 (Colo. 2013). This requires showing the following four elements:
(1) the issue is identical to an issue actually litigated and necessarily adjudicated in the prior proceeding; (2) the party against whom estoppel was sought was a party to or was in privity with a party to the prior proceeding; (3) there was a final judgment on the merits in the prior proceeding; and (4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issues in the prior proceeding.Stanton v. Schultz, 222 P.3d 303, 307 (Colo. 2010). Moreover, as Defendants have done here, "a non-party to a judgment may invoke collateral estoppel to bar relitigation of an issue." Cent. Bank Denver, N.A. v. Mehaffy, Rider, Windholz & Wilson, 940 P.2d 1097, 1101 (Colo. App. 1997).
Regarding the first element, Plaintiff filed suit in the 16th Judicial District Court for the County of Crowley, Colorado on January 9, 2019, before filing the instant Complaint [#1]. Defs.'s Ex. B [#20-2] at 1 (Plaintiff's Complaint in Case No. 2019CV1). The liberty interest argument made in Plaintiff's state district court case—2019CV1—is identical to the liberty interest argument set forth by Plaintiff in this case. Id. at 2-6. Plaintiff challenged the exact same jail transfers, between Boulder County and Arapahoe County, and both cases argued that Colo. Rev. Stat. §§ 13-45-111 and 17-26-119 were violated. Id. Thus, the issue alleged in this case has already been "actually litigated . . . in the prior proceeding[,]" and, therefore, the first element is met. See Stanton, 222 P.3d at 307.
Regarding the second element, issue preclusion, i.e. collateral estoppel, is clearly being sought against a party involved in the prior proceeding. Plaintiff was also the plaintiff in Case No. 2019CV1, and now issue preclusion is being sought against Plaintiff here. Defs.'s Ex. B [#20-2] at 1; Defs.'s Ex. C [#20-3] at 1 (Order Dismissing Case and Denying Motion to Amend); Motion [#20] at 9-11. Thus, the second element is also met.
Regarding the third and fourth elements, the 16th Judicial District Court held that "because this action is subject to the one-year statute of limitations and because both the Colorado Statutes and case law do not support the arguments of the plaintiff the Court is dismissing this case and denying the motion to amend the complaint." Defs.'s Ex. C [#20-3] at 2. Therefore, there was "a final judgment on the merits in the prior proceeding," and there is no indication that Plaintiff did not have "a full and fair opportunity to litigate the issues in the prior proceeding." See Stanton, 222 P.3d at 307. Plaintiff states that the civil action in state district court was dismissed simply because the statute of limitations had passed. Response [#27] at 9-10. This is not entirely accurate though. The district court directly held that even if the statute of limitations had not passed, Plaintiff's claim still would have been dismissed "because both the Colorado Statutes and case law do not support the arguments of the plaintiff," i.e., Plaintiff's claim was not backed by proper legal authority. See Defs.'s Ex. C [#20-3] at 2. Thus, the third and fourth elements of issue preclusion are met too.
Therefore, the Court finds that, as Defendants state: "[b]ecause a final state court judgment rested on the holding that [Plaintiff] had no state-created liberty interest that could be affected by his jail transfers, [Plaintiff's] claim is subject to issue preclusion in this case." Reply [#28] at 4.
b. Absolute Right to Bail
The courts have consistently held that persons convicted in Colorado have no absolute right to bail including while their sentencing is pending. See People v. Roca, 17 P.3d 835, 836 (Colo. App. 2000) ("There is no constitutional right to bail after conviction in Colorado."); Corbett v. Patterson, 272 F. Supp 602, 607 (D. Colo. 1967) ("It is definitely beyond cavil that the right to bail is not absolute."); Hamilton v. New Mexico, 479 F.2d 343, 344 (10th Cir. 1973) ("A state prisoner has no absolute federal constitutional right to bail pending appeal."); United States v. Abuhamra, 389 F.3d 309, 318 (2d Cir. 2004) (holding that there is no substantive constitutional right to bail pending sentencing); People v. Junes, 233 P. 1109, 1109 (Colo. 1925) (stating that post-conviction bail is not a matter of right; rather, it is up to the discretion of the trial court whether the convicted person is permitted to be released on bail).
Here, Plaintiff was convicted of felony menacing in Case No. 2017CR360 after he pleaded guilty to this charge on May 17, 2017. See Hafelfinger v. Dist. Court of Eighth Judicial Dist., 674 P.2d 375, 376 (Colo. 1984) ("In the context of the bail bond statute, a plea of guilty, when accepted by the court which grants a deferred judgment and sentence, constitutes a conviction."); Colo. Rev. Stat. § 16-7-206(3) ("The acceptance by the court of a plea of guilty . . . acts as a conviction for the offense."). Thus, as a convicted defendant, Plaintiff forfeited his absolute right to bail under the Due Process Clause. See United States v. Affleck, 765 F.2d 944, 948 n.6 (10th Cir. 1985) (noting a congressional determination that "there is clearly no constitutional right to bail once a person has been convicted"). Therefore, despite the fact that the Larimer County Court released Plaintiff on bond after his guilty plea, Plaintiff's conviction remained in place such that he did not have an absolute legal right to be out on bond. See generally People v. Johnson, 2017 COA 97, No. 17CA0749, 2017 WL 2981216, at *4-7 (Colo. App. 2017).
Accordingly, to the extent Plaintiff's claim could be construed as arguing that he had an absolute right to bail, that argument fails.
c. Right to Court-Ordered Bail
As noted above, the Court believes that the primary issue that Plaintiff is attempting to assert here is that he was permitted by both the Larimer County Court and the Boulder County Court to be released on bond, but Defendants chose not to release Plaintiff in the absence of any legally justifiable reason. Compl. [#1] at 6-7; Response [#27] at 3-7; Surreply [#32] at 2-4.
To repeat an earlier point, it is up to the discretion of the trial court whether the convicted person is permitted to be released on bail or bond. Junes, 233 P. at 1109. Once the trial court, which here was the Larimer County Court, decided that Plaintiff should be released on bond, Defendants have provided no legal authority to show that they were constitutionally permitted to independently choose not to release Plaintiff simply because Plaintiff has no absolute right to bail under the Constitution. In other words, Defendants' theory seems to be that they could flout orders issued by the Larimer County Court without consequence. This is untenable. Even though Plaintiff "does not have an absolute right to bail, he does [have] 'a Fourteenth Amendment due process right to have a state's bail system administered without caprice or discrimination.'" Palafox-Lugo v. Lombardo, No. 2:18-cv-01294-GMN-VCF, 2018 WL 9986855, at *1 (D. Nev. Sept. 17, 2018) (holding that, even if the detention center had the authority to detain prisoners, "that authority does not permit state agents to ignore or disobey the state court's bail order") (quoting Kelly v. Springett, 527 F.2d 1090, 1093 (9th Cir. 1975)).
Certainly, there are plenty of legally cognizable reasons why Plaintiff may not have been released on bond despite the Larimer County Court's order, such as, for example, Plaintiff's failure to be released on bond on other charges in a separate case. See generally Johnson, 2017 WL 2981216, at *3-7 (Colo. App. 2017). There is some indication in the briefs that something along these lines may have occurred here. However, the Court cannot consider the additional allegations (as opposed to additional legal arguments) made in the briefs, because the Court must only examine "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley, 40 F.3d at 340. Just as importantly, there is simply no on-point legal argument made by Defendants regarding the alleged failure to release Plaintiff on bond in the absence of any legally justifiable reason. See Motion [#20]. To the extent Defendants attempt to belatedly address this issue in the Reply, they depend explicitly on allegations which the Court may not consider, even if those allegations were ones supplied by Plaintiff in his Response [#27]. Reply [#28] at 5; see Mobley, 40 F.3d at 340. In light of the lack of adequate briefing on this specific issue, the Court cannot find that Defendants have met their burden of showing that Plaintiff's Complaint [#1] fails to state a claim at this early stage of the case. Similarly, the Court notes that Defendants' "clearly established" argument is equally off-point, and the Court therefore cannot find that Defendants are entitled to qualified immunity at this time. See Motion [#20] at 6-8; see also Kelly, 527 F.2d at 1093.
Accordingly, the Court recommends that the Motion [#20] be denied with respect to Plaintiff's due process liberty-interest claim regarding the alleged failure of Defendants in their individual capacities to release Plaintiff on bond in the absence of any legally justifiable reason.
To the extent Plaintiff's claim is construed more broadly, the Court recommends that the Motion [#20] otherwise be granted based on collateral estoppel and Plaintiff's lack of an absolute right to bail.
B. Official Capacity Claims
"An action against a person in his official capacity is, in reality, an action against the government entity for whom the person works." Pietrowski v. Town of Dibble, 134 F.3d 1006, 1009 (10th Cir. 1998); Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 692 (1978). To assert a municipal liability claim against Defendants, Plaintiff must allege that: (1) his constitutional rights were violated; and (2) a municipal policy or custom was the moving force behind the constitutional deprivation(s). Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997). Defendants argue that Plaintiff has failed to sufficiently allege official capacity claims because Plaintiff "fails to plead the existence of an official policy or custom causing his constitutional injury." Reply [#28] at 1-2 (citing Dawson v. Bd. of Cty. Comm'rs, 732 F. App'x 624, 628 (10th Cir. 2018)); see also Motion [#20] at 16-17.
Regardless of how Plaintiff's claims are construed, the Court finds that Plaintiff has failed to provide any specific allegations demonstrating the existence of a custom or policy to support the second element of the official capacity claims. Plaintiff states that "[t]he official policy or custom is going to come down to the creation of the Arapahoe County warrant and the customs used to create this no bond secret warrant." Surreply [#32] at 1. This statement is insufficient for two reasons. First, there are no allegations in the Complaint [#1] to support this statement. See Mobley, 40 F.3d at 340.
Second, even if the Court were to consider this statement, it is too vague to survive a motion to dismiss. See, e.g., Carbajal v. St. Anthony Cent. Hosp., No. 12-cv-02257-REB-KLM, 2013 WL 4799654, at *3 (D. Colo. Sept. 6, 2013). In the absence of an official policy, official capacity claims can only survive if the challenged practice is "so permanent and well settled as to constitute a 'custom or usage' with the force of law." Lankford v. City of Hobart, 73 F.3d 283, 286 (10th Cir.1996) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 168 (1970)). To prove a custom, therefore, a plaintiff must allege "[t]he existence of a continuing, persistent and widespread practice of unconstitutional misconduct." Gates v. Unified Sch. Dist. No. 449 of Leavenworth Cty., Kan., 996 F.2d 1035, 1041 (10th Cir.1993). A single incident of unconstitutional conduct is insufficient to plausibly suggest the existence of a custom or widespread. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-824 (1985); Starrett v. Wadley, 876 F.2d 808, 820 (10th Cir.1989); Murphy v. Bitsoih, 320 F.Supp.2d 1174, 1196-97 (D.N.M.2004). Because the Complaint [#1] does not provide allegations suggesting that anyone other than Plaintiff himself was ever subjected to the allegedly unconstitutional actions by Defendants, Plaintiff has not sufficiently alleged a viable claim based on the existence of a custom or practice.
In the absence of an adequately alleged custom or practice, Plaintiff must allege the existence of an official policy. See Tuttle, 471 U.S. at 823-24 ("Proof of a single incident of unconstitutional activity is not sufficient to impose liability [against a municipality], unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker."). "In order to warrant liability, a municipal policy must be a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the municipality's] officers." Lankford, 73 F.3d at 286 (citation and internal quotation marks omitted). Here, Plaintiff has not provided allegations to plausibly suggest that the Boulder County Jail has adopted or promulgated any such policy statement, ordinance, regulation, or decision regarding the circumstances presented here. Similarly, Plaintiff has not alleged any facts (as opposed to mere conclusions) to plausibly suggest that an official with final policymaking authority over this particular area of concern adopted or promulgated such a policy. See Moss v. Kopp, 559 F.3d 1155, 1169 (10th Cir. 2009); Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996). Therefore, the Court finds that Plaintiff fails to sufficiently allege the second prong of the municipal liability test.
Of course, to the extent that the Court has found that Plaintiff has failed to show a constitutional violation with respect to certain claims above, the official capacity claims also fail on the first element of the test. See Brown, 520 U.S. at 404.
Accordingly, the Court recommends that the Motion [#20] be granted to the extent that Plaintiff's official capacities claims against them be dismissed with prejudice. See Hicks v. Anderson, No. 11-cv-00422-WJM-KMT, 2012 WL 1415338, at *7 (D. Colo. Jan. 23, 2012); see also Brown, 520 U.S. at 404; Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006).
IV. Conclusion
Based upon the foregoing,
IT IS HEREBY RECOMMENDED that the Motion [#20] be GRANTED in part and DENIED in part. The Court recommends that the Motion be denied with respect to Plaintiff's liberty-interest claim regarding court-ordered bail under the due process clause of the Fourteenth Amendment against Defendants in their individual capacities. The Court recommends that the Motion be granted to the extent that Plaintiff's remaining claims be dismissed as outlined above.
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 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corrs., 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: August 24, 2020
BY THE COURT:
/s/
Kristen L. Mix
United States Magistrate Judge