Opinion
Civil Action 1:22-cv-02385-PAB-SKC
11-21-2023
NICHOLAS N. KAZARINOFF, and LINDA COYOTE KAZARINOFF, Plaintiffs, v. JEFFREY R. WILSON, individually and in his official capacity of Chief Judge of the Colorado 6th Judicial District, TODD WEAVER, individually and in his official capacity as County Attorney of Archuleta County, WARREN BROWN, individually and in his official capacity as County Commissioner of Archuleta County, ALVIN SCHAFF, individually and in his official capacity as County Commissioner of Archuleta County, RONNIE MAEZ, individually and in his official capacity as County Commissioner of Archuleta County, SEAN SMITH, individually and in his official capacity as Sheriff of La Plata County, THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF ARCHULETA, THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF LA PLATA, and JOHN DOES 1-3, individually and in their official capacities as Deputies of the La Plata County Sheriff's Office, Defendants.
RECOMMENDATION ON DEFENDANT WILSON'S MOTION TO DISMISS (DKT. 11), LA PLATA COUNTY DEFENDANTS' MOTION TO DISMISS (DKT. 13), & ARCHULETA COUNTY DEFENDANTS' MOTION TO DISMISS (DKT. 29)
S. KATO CREWS, UNITED STATES MAGISTRATE JUDGE
This lawsuit, filed by Plaintiffs Nicholas N. Kazarinoff and Linda Coyote Kazarinoff, who proceed pro se, centers on a land dispute between Plaintiffs and Archuleta County and the subsequent state court proceedings by which Archuleta County was determined to be the rightful owner of the contested land. See generally, Dkt. 1.Plaintiffs sued the following defendants, which the Court groups below for convenience:
The Court uses “Dkt. ” to refer to docket entries in CM/ECF.
1) Jeffrey R. Wilson (Wilson), individually and in his official capacity as Chief Judge of Colorado's 6th Judicial District;
2) Todd Weaver (Weaver), individually and in his official capacity as County Attorney of Archuleta County; Warren Brown (Brown), Alvin Schaff (Schaff), and Ronnie Maez (Maez), each individually and in his official capacity as a County Commissioner of Archuleta County; and the Board of County Commissioners of the County of Archuleta (Archuleta Board) (all together, the “Archuleta Defendants”); and
3) Sean Smith (Smith), individually and in his official capacity as Sheriff of La Plata County, and the Board of County Commissioners of the County of La Plata (La Plata Board) (together, the “La Plata Defendants”).
Plaintiffs also make allegations concerning John Does 1-3 (La Plata Deputies), individually and in their official capacities as Deputies of the La Plata County Sheriff's Office, but these unknown defendants have not been identified or served.
Wilson, the Archuleta Defendants, and the La Plata Defendants comprise the “Defendants.”
Plaintiffs assert eight claims against the Defendants variously, seven claims arising under 42 U.S.C. § 1983 (Claims 1-7) and one claim arising under 42 U.S.C. § 1985 (Claim 8). Plaintiffs seek damages and injunctive relief. The specific claims as articulated by Plaintiffs are as follows:
Plaintiffs also “petition this Court to convene a federal grand jury to investigate what Plaintiffs believe to be violations of federal law by all Defendants, incorporating 18 U.S.C. §§ 241, 242 and 1962.” Dkt. 1, p.2. But the Court does not investigate criminal matters. Rather, criminal investigations are the prerogative of the Executive Branch.
CLAIM
DEFENDANTS
Claim 1 “DEPRIVATION OF RIGHT TO JUST COMPENSATION UNDER 42 U.S.C. 1983 - VIOLATIONS OF THE FIFTH AND FOURTEENTH AMENDMENTS (Failure to Justly Compensate Plaintiffs After Taking Private Property for Public Use)”
Wilson Archuleta Defendants
Claim 2 “DEPRIVATION OF RIGHT TO DUE PROCESS OF LAW UNDER 42 U.S.C. 1983 - VIOLATIONS OF THE FIFTH AND FOURTEENTH AMENDMENTS (Taking of Plaintiffs' Real Property Absent Due Process of Law)”
Wilson Archuleta Defendants
Claim 3 “DEPRIVATION OF RIGHT TO ACCESS TO THE COURT UNDER 42 U.S.C. 1983 - VIOLATIONS OF THE FIRST, FIFTH & FOURTEENTH AMENDMENTS & ARTICLE IV PRIVILEGES AND IMMUNITIES CLAUSE (Barring Plaintiffs' Access to the Court)”
Wilson La Plata Defendants
Claim 4 “DEPRIVATION OF RIGHT TO DUE PROCESS OF LAW UNDER 42 U.S,C, 1983 - VIOLATIONS OF THE FIFTH AND FOURTEENTH AMENDMENTS (Deprivation of Plaintiffs' Right to Due Process of Law Before Depriving Plaintiffs of Just Compensation)”
Wilson Archuleta Defendants
Claim 5 “DEPRIVATION OF RIGHT TO DUE PROCESS OF LAW UNDER 42 U.S.C. 1983 - VIOLATIONS OF THE FIFTH AND FOURTEENTH AMENDMENTS (Deprivation of Plaintiffs' Right Due to Process of Law Before Depriving Plaintiffs' of the Right to Access to the Court)”
Wilson La Plata Defendants
Claim 6 “UNCONSTITUTIONAL TAKING UNDER 42 U.S.C. 1983 -VIOLATIONS OF THE FIFTH AND FOURTEENTH AMENDMENTS (Unconstitutional Taking - Inverse Condemnation)”
Wilson Archuleta Defendants
Claim 7 “RETALIATION UNDER 42 U.S.C. 1983 - VIOLATIONS OF La Plata Defendants THE FIRST AND FOURTEENTH AMENDMENTS (Against all Defendants by all Plaintiffs)”
Wilson Archuleta Defendants
Claim 8 “CONSPIRACY TO DEPRIVE CIVIL RIGHTS UNDER 42 U.S.C. 1985 (Against All Individual Defendants)”
All Individual Defendants
This Recommendation addresses the following three motions, all referred to this Court (Dkt. 37):
(i) Wilson's Motion to Dismiss (Wilson MTD), Dkt. 11, along with Plaintiffs' Opposition, Dkt. 30, and Wilson's Reply, Dkt. 32.
(ii) La Plata Defendants' Motion to Dismiss (La Plata MTD), Dkt. 13.
Plaintiffs did not file a response.
(iii) Archuleta Defendants' Motion to Dismiss (Archuleta MTD), Dkt. 29. Plaintiffs did not file a response.
The Court carefully reviewed the Motions and associated briefing, the Complaint, and applicable law. No hearing is necessary. Because the Court finds Wilson is entitled to judicial immunity individually, and the Eleventh Amendment applies to him officially, the Court RECOMMENDS the Wilson MTD be GRANTED. The Court also finds the Complaint fails to state a claim under Rule 12(b)(6) against the La Plata Defendants, and therefore, the Court RECOMMENDS the La Plata MTD be GRANTED. Concerning the Archuleta Defendants, because the Archuleta Defendants failed to provide the Court with sufficient information to determine that issue preclusion applies, and because their additional arguments are woefully underdeveloped, the Court RECOMMENDS the Archuleta MTD be DENIED.
The Court will refer to specific rules from the Federal Rules of Civil Procedure simply as “Rule,” e.g. Rule 12(b)(6).
LEGAL PRINCIPLES
Pro Se Litigants
Plaintiffs proceed pro se; thus, the Court liberally construes their pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). But the Court does not act as their advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Rule 12(b)(6) Standard for Failure to State a Claim
In deciding a motion under Rule 12(b)(6), the Court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The Court is not, however, “bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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.” Id. (internal quotation marks omitted). A claim is plausible when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard requires more than the mere possibility that a defendant has acted unlawfully. Id. Facts that are “merely consistent” with a defendant's liability are insufficient. Id. “[T]o state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant's actions harmed him or her; and what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
The Court's ultimate 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). “Nevertheless, the standard remains a liberal one, and ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely.'” Morgan v. Clements, No. 12-cv-00936-REB-KMT, 2013 WL 1130624, at *1 (D. Colo. Mar. 18, 2013) (quoting Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)).
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiffs filed their pro se Complaint on September 15, 2022. Dkt. 1. They allege the following facts, which the Court assumes as true for purposes of deciding the Rule 12(b)(6) portions of the Motions, but the Court ignores any “legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555.
The Complaint alleges Plaintiffs purchased real property (Property) in Pagosa Springs, Colorado, in 2009. Dkt. 1, ¶16. Then, “[b]eginning in 2017 and lasting until late 2019, several public servants of Archuleta County made multiple demands that a portion of Plaintiffs' private property be made available for public use.” Id. at ¶1. “In late 2019, Archuleta County filed a civil lawsuit against Plaintiffs, claiming a legal right to ownership of Plaintiffs' private property via adverse possession.” Id. at ¶2.
When Plaintiffs acquired the Property, they allege “there were no existing easements or contracts that would require Plaintiffs to allow any portion of [the Property] be used for public use.” Id. at ¶16. However, the prior owner “indicated that at some point she had given a representative from the Aspen Springs Metropolitan District (‘ASMD') verbal permission to use a portion of [the Property] as a turnaround,” and “[t]his verbal agreement was never mentioned to Plaintiffs.” Id. at ¶17. The prior owner owned the Property beginning in 1985. Id.
In August 2009, Plaintiffs began erecting a chain across the northern boundary of the Property for three days each year, which the Court understands had the effect of blocking traffic from an adjoining street. Id. at 18. In August 2017, they erected a permanent gate where they had previously placed the chain. Id. In November 2017, Plaintiffs received a letter from ASMD alleging that Plaintiffs were “blocking a legal right of way on a cul-de-sac alleged to be owned by Defendant Archuleta County.” Id. at ¶19. At a December 2017 ASMD meeting, Plaintiffs were told “part of [the Property] was owned by Archuleta County through adverse possession,” and Plaintiffs needed to remove “the fence and chain.” Id. at ¶21. Plaintiffs, ASMD, and Archuleta County then debated whether an easement existed over the Property for the benefit of ASMD. See id. at ¶¶22-27.
The discussions ended around March 1, 2019, when Defendant Weaver, in his capacity as the Archuleta County attorney, filed a lawsuit (State Case) against Plaintiffs alleging “(1) the southern end of Oak Ridge Road terminates on the northern boundary of [the Property]; (2) the turnaround for the southern end of Oakridge Road (the ‘Turnaround') is located on [the Property]; [and] (3) [Archuleta] County and ASMD has snowplowed, bladed, graded and/or otherwise maintained the Turnaround continuously since at least 1983.” Id. at ¶28 (internal quotation marks and emphasis removed).
Plaintiffs hired an attorney to represent them in the State Case. Id. at ¶29. In April 2021, two years after the case began, Archuleta County offered to withdraw the State Case if Plaintiffs agreed not to seek their attorney fees or damages. Id. Plaintiffs rejected the offer. Id. Shortly thereafter, Plaintiffs' attorney sought to withdraw, which the Colorado court allowed. Id.
The State Case proceeded to trial. Id. at ¶30. The Complaint alleges that “[o]n or about August 30th, 2021, trial for the [State Case] was held at the La Plata County Courthouse. Plaintiffs attempted to exercise their right to access to (sic) the court but were barred entry by Defendants John Does 1-3.” Id. “Defendant Wilson, the presiding judge, was aware that Plaintiffs were at the courthouse trying to access the court. Instead of ordering that Plaintiffs be allowed access to the court, Defendant Wilson barred Plaintiffs and continued the trial without Plaintiffs present.... Defendant Wilson found in favor of Defendant Archuleta County and instructed Defendant Weaver to present the court with a description of the private property that Defendant wished to seize from Plaintiffs.” Id. at ¶31.
Following the trial, “Defendant Wilson made the [ ] claim that Plaintiffs ‘chose not to appear in person... .' Defendant Wilson also ordered private property be seized from Plaintiffs under ‘. adverse possession pursuant to CRS 43-2-101(1)(c)... ', as well as granted a permanent injunction preventing Plaintiffs from interfering with travel on the portion of [the Property] that had been seized.” Id. at ¶32.
Plaintiffs further allege “(1) Defendants Brown, Schaff, and Maez were given regular open litigation updates regarding the [State Case] by Defendant Weaver; (2) Defendants Brown, Schaff, and Maez authorized the continued litigation of the [State Case]; [and] (3) Defendant Maez, when asked what he thought about the resulting judgment of the [State Case], replied that what was done to Plaintiffs was ‘a good thing'.” Id. at ¶39. Plaintiffs also allege Archuleta and La Plata Counties failed to provide adequate training to their employees. Id. at ¶¶39, 52, 62, 67, 73, 85.
ANALYSIS
I. The Wilson MTD
Plaintiffs bring Claims 1-8 against Wilson. Wilson argues: (1) he is entitled to judicial immunity; (2) the official capacity claims against him are barred by the Eleventh Amendment; (3) he is entitled to qualified immunity; (4) Plaintiffs' claims fail under Rule 12(b)(6); and (5) Plaintiffs' state law tort claims are barred by the Colorado Governmental Immunity Act. As explained below, the Court finds judicial immunity applies to Wilson for the claims brought against him in his individual capacity and the Eleventh Amendment bars the claims brought against him in his official capacity.
a. Judicial Immunity
It is well established judges are absolutely immune from suit when “resolving disputes between parties who have invoked the jurisdiction of a court.” Forrester v. White, 484 U.S. 219, 227 (1988). “Courts have long recognized that a litigant dissatisfied with the outcome of judicial proceedings will oftentimes accuse his ‘adversaries' of constitutional infirmities.” Valdez v. City & Cty. of Denver, 878 F.2d 1285, 1287 (10th Cir. 1989) (citing Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 348 (1871)). Moreover, the “Supreme Court has recognized the defense of absolute immunity from civil rights suits in several well-established contexts involving the judicial process.” Snell v. Tunnell, 920 F.2d 673, 686 (10th Cir. 1990).
“[I]mmunity is justified and defined by the functions it protects and serves ....” Forrester, 484 U.S. at 227 (emphasis in original). Even if “the action [the judge] took was in error, was done maliciously, or was in excess of his authority,” a judge cannot be said to have acted in the clear absence of all jurisdiction. Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). “A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors.” Id. at 359. The only exceptions to this rule are where a judicial officer's actions are “not taken in the judge's judicial capacity” or, though judicial in nature, are taken “in the complete absence of all jurisdiction.” Stein v. Disciplinary Bd. of Supreme Ct. of NM, 520 F.3d 1183, 1195 (10th Cir. 2008). “[T]he factors determining whether an act by a judge is a ‘judicial' one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they deal with the judge in his judicial capacity.” Stump, 435 U.S. at 362.
Here, the allegations in the Complaint indicate Wilson was acting in his judicial role when presiding over the State Case. See Dkt. 1, ¶¶30-32. For example, Plaintiffs allege Wilson presided over a trial in the State Case and he “found in favor of Defendant Archuleta County and instructed Defendant Weaver to present the court with a description of the private property that Defendant wished to seize from Plaintiffs,” and “Wilson made the [ ] claim that Plaintiffs ‘chose not to appear in person' ....” Id. at ¶¶31, 32. Undoubtedly, presiding over a trial involves archetypal judicial acts.
Plaintiffs argue in their opposition that “the use of an administrative order, absent due process of law, and used to deny rights in a judicial trial, are not acts to which absolute immunity attaches.” Dkt. 30, p.2. They continue, “Wilson used a general administrative order to justify the deprivation and personally instructed John Does 1-3 to prevent Plaintiffs from entering the court for trial.” Id. at pp.2-3.
While Plaintiffs are correct that a judge's administrative acts (rather than judicial acts) are not entitled to absolute judicial immunity, see, e.g., Stein, 520 F.3d at 1195, Plaintiffs fail to direct the Court to any factual allegations contained in the Complaint to suggest that any of Wilson's actions were, in fact, administrative. In the Complaint, they merely allege that “Wilson, the presiding judge, was aware that Plaintiffs were at the courthouse trying to access the court. Instead of ordering that Plaintiffs be allowed access to the court, Defendant Wilson barred Plaintiffs and continued the trial without Plaintiffs present ....” Dkt. 1, ¶31.
Plaintiffs' additional statements-concerning the delegation of administrative powers to chief judges of Colorado's judicial districts-do not remedy the lack of factual allegations in the Complaint to suggest an administrative act by Wilson. See id. at ¶58. Without alleging supportive facts, the Court cannot accept such legal conclusions as true. See Twombly, 550 U.S. at 555. And to be sure, judicial control over who may appear before a judge is inherently a judicial act, not an administrative one. See Mireles v. Waco, 502 U.S. 9, 19 (1991) (“A judge's direction to court officers to bring a person who is in the courthouse before him is a function normally performed by a judge.”); see also Huminski v. Corsones, 396 F.3d 53, 79-77 (10th Cir. 2005). Consequently, Plaintiffs' claims against Wilson in his individual capacity should be dismissed based on judicial immunity.
b. Eleventh Amendment
Plaintiffs also allege that Wilson is liable for each of their claims in his official capacity. See Dkt. 1, ¶7. Wilson points out, however, a lawsuit against him in his official capacity is, in fact, a suit against the State of Colorado. Dkt. 11, p.6; see also, e.g., Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Therefore, he argues the Eleventh Amendment bars Plaintiffs' official-capacity claims against him. Dkt. 11, p.6.
Plaintiffs concede the Eleventh Amendment bars their claims that seek damages against Wilson in his official capacity, but they claim they only seek injunctive relief against him in his official capacity. See Dkt. 30, p.5 (“Plaintiffs agree that the claims for damages against Defendant Wilson in his official capacity. [sic] Plaintiffs may have erred by failing to make clear that Plaintiffs are seeking only injunctive relief against Defendant Wilson in his official capacity.”).
The Ex parte Young doctrine creates an exception to Eleventh Amendment immunity for a suit against a state official that “seeks prospective relief for the official['s] ongoing violation of federal law.” Harris v. Owens, 264 F.3d 1282, 1290 (10th Cir. 2001). “[A] court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Maryland, Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645 (2002) (internal quotation marks, edits, and citation omitted).
Plaintiffs fail to plausibly allege any ongoing violation of federal law by Wilson. The factual allegations concerning Wilson's last actions allege they occurred on or about August 30, 2021, when the trial in the State Case concluded and Wilson entered an “Order After Court Trial.” Dkt. 1, ¶¶31-32. The Complaint alleges no ongoing unlawful activity by Wilson in or involving the State Case (or otherwise), nor any future acts by him that injunctive relief could remedy.
What the Complaint does allege, by contrast, is Wilson's final and completed act of entering an order after the conclusion of the trial in the State Case. See id. at ¶32. Thus, the Ex parte Young doctrine offers no exception to the Eleventh Amendment bar of claims against Wilson in his official capacity. Consequently, the Plaintiffs claims against Wilson in his official capacity should also be dismissed.
Based on the above, the Court respectfully RECOMMENDS that all of Plaintiffs' Claims against Wilson in both his individual and his official capacities be DISMISSED, and Wilson be DISMISSED from this lawsuit.
Plaintiffs' Complaint against Wilson alleges only various violations of 42 U.S.C. § 1983 and a violation of 42 U.S.C. § 1985. See Dkt. 1, pp.9, 11, 14, 17, 18, 19, 22, 25. Wilson argues, to the extent the Court were to construe that Plaintiffs also allege Wilson committed torts against Plaintiffs, Plaintiffs have waived those claims by failing to file a timely written notice of claim under state law. Dkt. 11, pp.10-13. Even construing the Complaint liberally as this Court must, see Haines, 404 U.S. at 52021, the Court finds that Plaintiffs have not asserted any tort claims against Wilson. And even if the Court were to construe the Complaint to set forth a state law tort claim against Wilson, the Complaint alleges no facts showing Plaintiffs' compliance with the Colorado Governmental Immunity Act, Colo. Rev. Stat. 24-10-101, et seq.
II. The La Plata MTD
Plaintiffs allege the La Plata Defendants are liable, both individually and in their official capacities, for Claims 3, 5, 7, and 8. Plaintiffs again seek damages and injunctive relief. The La Plata Defendants argue each claim against them should be dismissed for failing to state a claim upon which relief can be granted under Rule 12(b)(6). See Dkt. 13, p.1. The Court agrees with the La Plata Defendants.
a. Claim 3: “Barring Plaintiffs' Access to the Court”
Plaintiffs allege the La Plata Defendants violated 42 U.S.C. § 1983 by denying them access to the court in the State Case. To state this claim, the Complaint must plausibly allege (1) an “underlying cause of action,” and (2) “official acts frustrating the litigation.” See Christopher v. Harbury, 536 U.S. 403, 415 (2002). The “plaintiff must allege that denial of access to the courts caused him ‘actual injury.'” Carr v. Zwally, 760 Fed.Appx. 550, 556 (10th Cir. 2019) (citing Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010)). The Supreme Court has “linked the pleading requirements for the underlying claim with the standards” of Rule 8(a). Han-Noggle v. City of Albuquerque, 632 Fed.Appx. 476, 481 (10th Cir. 2015).
Plaintiffs do not allege anything more specific concerning their denial of access claim vis-a-vis the La Plata Defendants other than the allegation that the La Plata Deputies (John Does 1-3) barred Plaintiffs' entry into the courthouse. Dkt. 1, ¶30. This single allegation is insufficient to state a denial of access claim without additional facts to plausibly allege whether barring Plaintiffs entry frustrated the litigation or caused Plaintiffs actual injury. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). For example, Plaintiffs do not offer any factual allegations about how they were barred entry, why they were barred entry, or whether their being barred frustrated their opportunities to seek reconsideration from Wilson or otherwise appeal his order or the judgment. Further, the Complaint is internally inconsistent on this point. On the one hand it alleges John Does 1-3 barred Plaintiffs' entry, and on the other it alleges that “Wilson barred Plaintiffs and continued the trial without” them rather than “ordering that Plaintiffs be allowed access to the court[.]” See Dkt. 1, ¶¶30, 31.
Similarly, Plaintiffs allege Defendant Smith “participated” in the denial of access and “Defendant La Plata County” acted through Smith and it further failed to adequately train its employees. Id. at ¶¶61, 62. But the allegations involving these Defendants are wholly conclusory. See, e.g., id. at ¶61 (alleging “Defendant La Plata County, via its policy maker Defendant Smith, and together with Defendants John Does 1-3 and Wilson, jointly participated in, and effected, the deprivation of Plaintiffs' right to access to the court.”); ¶62 (“Defendant La Plata County failed to provide adequate training to its employees.”). Plaintiffs fail to support these conclusory allegations with allegations of fact to state a plausible claim for relief.
The Court also agrees with the La Plata Defendants that a Section 1983 claim alleging individual liability must include allegations that a defendant personally participated in the alleged violation. See Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009). The allegations here do not rise to this level. There are no factual allegations whatsoever that describe how Smith or the La Plata Board each personally participated in the alleged denial of access. Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (personal participation is an essential allegation of a Section 1983 claim); see also Nasious, 492 F.3d at 1163 (“[T]o state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant's actions harmed him or her; and what specific legal right the plaintiff believes the defendant violated.”).
Even further, the claim as alleged fails because Plaintiffs make no allegations about whether they were represented by counsel at the trial in the State Case. See Carr, 760 Fed.Appx. at 556 (no denial of access claim where complaint did not include allegations of whether plaintiff was represented by counsel in the underlying court proceeding or was proceeding pro se). The Complaint does allege they hired an attorney to represent them in the State Case, and that representation continued “for almost two years” before the attorney withdrew. Dkt. 1, ¶29. But it does not allege whether Plaintiffs proceeded pro se at the time they were denied entry into the courthouse. Consequently, for each of these reasons, the Court respectfully recommends that Claim 3 be dismissed against the La Plata Defendants.
b. Claim 5: “Deprivation of Plaintiffs' Right Due to Process of Law Before Depriving Plaintiffs' of the Right to Access to the Court
Plaintiffs' assertion of a due process violation under the Fifth Amendment fails because the due process clause of the Fifth Amendment “applies only to due process violations by the federal government.” Carrier v. Lundstedt, No. 13-cv-02933-PAB-CBS, 2014 WL 8103198, at *5 (D. Colo. Dec. 22, 2014), report and recommendation adopted, 2015 WL 1041835 (D. Colo. Mar. 4, 2015). The La Plata Defendants are not federal actors.
The Complaint alleges the La Plata Defendants denied Plaintiffs due process of law before denying them access to the state court. Dkt. 1, ¶72. The denial of access alleged here is the same denial of access discussed above with Claim 3. And this claim fails for the same, or similar, reasons. The Court is unable to discern in Claim 5 what the alleged due process violation is, based on the lacking allegations in the Complaint.
“The Supreme Court's interpretation of [the Due Process Clause of the Fourteenth Amendment] explicates that the amendment provides two different kinds of constitutional protection: procedural due process and substantive due process.” Carrier, 2014 WL 8103198, at *5. “[T]o prevail on either a procedural or substantive due process claim, a plaintiff must first establish that a defendant's actions deprived plaintiff of a protectible property interest.” Roberts v. Winder, 16 F.4th 1367, 1375 (10th Cir. 2021) (quoting Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000)). “For the purposes of substantive due process, the plaintiff's property interest must be ‘fundamental.'” Id. (citing Hennigh v. City of Shawnee, 155 F.3d 1249, 1257 (10th Cir. 1998)). Procedural due process, on the other hand, requires that “individuals receive, at a minimum, ‘notice and an opportunity to be heard before the Government deprives them of property.'” Lyall v. City of Denver, No. 16-CV-2155-WJM-CBS, 2018 WL 1470197, at *14 (D. Colo. Mar. 26, 2018) (quoting United States v. James Daniel Good Real Prop., 510 U.S. 43, 48 (1993)). The Supreme Court has provided two steps for analyzing procedural due process claims: (1) “whether there exists a liberty or property interest which has been interfered with by the State[,]” and (2) “whether the procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989).
The Complaint alleges, “On or about August 30th, 2021, trial for the Takings Suit was held at the La Plata County courthouse. Plaintiffs attempted to exercise their right to access to (sic) the court but were barred entry by Defendants John Does 1-3.” Dkt. 1, ¶30. It further alleges “Plaintiffs have the right to due process of law before being deprived of property (including rights).” Id. at ¶71. And “[the La Plata Defendants] jointly participated in, and effected, the deprivation of Plaintiffs' right to due process of law before depriving Plaintiffs of their right to access to the courts.” Id. at ¶72.
Claim 5 fails to allege sufficient facts concerning the property or liberty interest involved. The Complaint further fails to specify whether it alleges a violation of Plaintiffs' substantive due process rights, or their procedural due process rights, see Carrier, 2014 WL 8103198, at *5, and if alleging the latter, “whether the procedures attendant upon that deprivation were constitutionally sufficient,” see Thompson, 490 U.S. at 460.
If the alleged right is Plaintiffs' claimed right of access to the courts, then such claim fails for the same reasons that Claim 3 fails.
The Complaint does reference both procedural and substantive due process rights in one paragraph, but that reference is conclusory and merely summarizes what the law requires. Id. at ¶50. That paragraph alone is too vague to understand which due process rights form the basis of Claim 5.
Courts, for example, have discretion to implement policies regarding entry into the premises of a courthouse, as in the case of security reasons. See, e.g., D.C.COLO.LCivR 83.2(a) (“All persons entering a building where court is being held shall be subject to security procedures.... Violation of this rule shall be grounds for refusing admission to the building where court is being held ”). Yet there are no allegations in the Complaint concerning what process the La Plata Defendants owed Plaintiffs prior to barring them entry to the courthouse, how these Defendants denied Plaintiffs entry, or why these Defendants denied them entry, all of which are facts necessary to nudge this claim from the possible to the plausible. Indeed, Plaintiffs plead that for almost two years, they (with their former counsel) actively participated in the State Case to only be denied entry on one trial day over the life of the case. See Dkt. 1, ¶¶29, 30. These allegations muddy the Complaint's effort to plausibly allege that Plaintiffs were denied due process prior to being barred entry to the courthouse.
The allegations in support of Claim 5 are conclusory at best, or too few to state a plausible claim. See id. at ¶¶30, 69-74. The Court finds Plaintiffs failed to plead sufficient facts to make their Fourteenth Amendment due process claim (be it a substantive or procedural claim) plausible, and the Court respectfully recommends dismissal of the claim.
c. Claim 7: First Amendment Retaliation
Plaintiffs appear to allege the filing of the State Case by the Archuleta County Defendants, and the barring of Plaintiffs' entry to the courthouse, both as acts of retaliation in violation of the First and Fourteenth Amendments. Id. at ¶¶ 28, 32, 8992. To state a claim for First Amendment retaliation, Plaintiffs must plead facts to plausibly allege the following elements: (1) they engaged in constitutionally protected activity; (2) Defendants' actions caused them to suffer an injury that would chill a person of ordinary firmness from engaging in the protected activity; and (3) Defendants' actions were substantially motivated as a response to the protected activity. See Hyberg v. Enslow, 801 Fed.Appx. 647, 651 (10th Cir. 2020). Plaintiffs must also “establish a ‘causal connection' between the [Defendants] ‘retaliatory animus' and [Plaintiffs'] ‘subsequent injury.” See Hall v. Brown, No. 22-4080, 2023 WL 7014046, at *5 (10th Cir. Oct. 25, 2023) (quoting Nieves v. Bartlett, 139 S.Ct. 1715, 1722 (2019)). The retaliatory animus must be the “but-for cause of [their] injury, meaning that the adverse action against [them] would not have been taken absent the retaliatory motive.” Id. (quoting Hartman v. Moore, 547 U.S. 250, 260 (2006)) (internal quotation marks omitted).
To the extent this claim is premised on the denial of entry to the courthouse, it fails for the same, or similar, reasons as discussed above with Claims 3 and 5. Moreover, there are no factual allegations, for example, which plausibly (and in a non-conclusory fashion) allege any retaliatory animus by the La Plata Defendants or that their actions were substantially motivated as a response to any protected activity Plaintiffs engaged in.
Plaintiffs also claim generally that they were retaliated against because they would not allow a portion of their property to be used by Archuleta County, and that Archuleta County initiated the State Case in retaliation. Dkt. 1, ¶¶88-89. But these allegations have nothing to do with the La Plata Defendants. Thus, the Court recommends granting the La Plata MTD concerning Claim 7.
d. Claim 8: Conspiracy to Deprive Civil Rights Under 42 U.S.C. § 1985
Because the Court recommends that all of Plaintiffs' claims against the La Plata Defendants should be dismissed, Plaintiffs' final claim against them for conspiracy to deprive civil rights under 42 U.S.C. § 1985 must also be dismissed. See Becker v. Kroll, 494 F.3d 904, 925 (10th Cir. 2007) (“Because we determine that [Plaintiff's] Fourth and Fourteenth Amendment claims were properly dismissed by the district court, it follows that her claim of conspiracy by the various defendants to commit these constitutional violations also fails.”).
Because the Court recommends granting the La Plata Defendants' Motion to Dismiss on Rule 12(b)(6) grounds, the Court does not address the additional argument that claims against Smith should be dismissed based upon his alleged qualified immunity.
Consequently, the Court respectfully RECOMMENDS the La Plata MTD be GRANTED and each of the La Plata Defendants be DISMISSED both individually and in their respective official capacities.
III. The Archuleta MTD
Plaintiffs bring Claims 1, 2, 4, 6, 7, and 8 against the Archuleta Defendants. The Archuleta Defendants filed their motion arguing (1) Claims 1, 2, 4, and 6 are barred by the issue preclusion doctrine, (2) the Archuleta Defendants are each entitled to qualified immunity on all claims against them, and (3) Claims 2, 4, 7, and 8 should be dismissed for failing to comply with the Rule 8 pleading standard. The Court, however, finds these Defendants have failed to provide enough information for this Court to determine that issue preclusion applies, and the Archuleta Defendants' other arguments are woefully underdeveloped. Thus, the Court recommends denying the Archuleta MTD.
a. Issue Preclusion
The Court is not persuaded at this point that issue preclusion applies to Claims 1, 2, 4, 6, 7 and 8. Under the doctrine of issue preclusion, “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443 (1970). “[I]ssue preclusion bars a party from relitigating an issue once it has suffered an adverse determination on the issue, even if the issue arises when the party is pursuing or defending against a different claim.” Park Lake Res. Ltd. Liab. v. U.S. Dep't of Agr., 378 F.3d 1132, 1136 (10th Cir. 2004) (citation omitted). It is designed to prevent parties from wasting time and resources, and to discourage losing parties from shopping around for a different court. See B & B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 140 (2015).
In general, issue preclusion applies when: (1) the issue previously decided is identical with the one presented in the action in question; (2) the prior action has been finally adjudicated on the merits; (3) the party against whom the doctrine is invoked was a party to, or in privity with, a party to the prior adjudication; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action. Park Lake, 378 F.3d at 1136.
Here, the Court cannot discern, inter alia, whether the claims brought in this lawsuit are identical with the ones presented in the State Case, or even if the State Case has been finally adjudicated on the merits. Moreover, it is unclear to the Court whether the State Case addressed Plaintiffs' claims that the case itself purportedly violated Plaintiffs' civil rights. While this Court may take judicial notice of matters from the State Case, the Archuleta Defendants did not provide the Court with anything from that case to assist this Court with such a review-such as providing a copy of the judgment or other orders, or other pleadings showing the issues that were pending before that court. See Armstrong v. JPMorgan Chase Bank Nat'l Ass'n, 633 Fed.Appx. 909, 911 (10th Cir. 2015) (citation omitted) (“A court may consider facts subject to judicial notice-including facts that are a matter of public record, such as documents filed in other litigation-without converting a motion to dismiss into a motion for summary judgment.”). Indeed, the Archuleta Defendants (nor any other party) have not even provided the case number for the State Case. This Court has no independent obligation to suss out these details. Thus, on this record, the Court cannot find that issue preclusion applies to the claims against the Archuletta Defendants.
b. Claims 2, 4, 7 and 8 and the Archuleta Defendants' Rule 8 Arguments
The Archuleta Defendants argue that Claims 2, 4, 7, and 8 should be dismissed against them because these claims fail to comply with Rule 8. Dkt. 29, pp.8-9. But while these Defendants cite Rule 8, it appears they mean to argue Rule 12(b)(6) because when arguing that the Complaint fails Rule 8, they cite Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), Dkt. 29, pp.3-4, 8, which both involved Rule 12(b)(6). Thus, the Court construes the Archuleta MTD as making a Rule 12(b)(6) argument when it contends the Complaint fails to comply with Rule 8.
The Archuleta Defendants are correct that 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. at 678. But the Archuleta MTD argues, in wholly cursory fashion, that Plaintiffs fail to meet the pleading standard. See Dkt. 29, pp.8-9. The Archuleta Defendants do not identify any elements of Claims 2, 4, 7, or 8 that lack sufficient factual allegations in the Complaint-they merely argue, without sufficient elucidation, that the Claims contain conclusory allegations and no allegations of fact. See id. (citing only the conclusory allegations in paragraphs 51, 66, 92, 93, and 99, of the Complaint).
But this argument ignores the section titled “Facts” in the Complaint, and that section's paragraphs 16-33. Claims 2, 4, 7, and 8, each incorporate paragraphs 16-33 by reference. Dkt. 1, ¶¶ 44 (Claim 2), 64 (Claim 4); 87 (Claim 7); and 98 (Claim 8). And further, the allegations under Claim 7 contain additional factual allegations. Id. at ¶¶88-93. Given Claims 2, 4, 7, and 8's incorporation by reference of the factual allegations in paragraphs 16-33 (and Claim 7's additionally alleged facts), the allegations must be read as a whole, particularly when liberally construing the pleading.
Rather than acknowledge the factual allegations in the Complaint and directing the Court to how those alleged facts fail to satisfy Rule 12(b)(6) for each of these claims, the Archuleta Defendants cite only to the conclusory statements in support of their argument. And thus, the arguments for dismissal of these claims are woefully underdeveloped. It is not the Court's responsibility to make a party's arguments for them. As the Tenth Circuit has said, an “appellant must present his claims in a way that does not compel us to scavenge through his brief for traces of argument.” United States v. Fisher, 805 F.3d 982, 991 (10th Cir. 2015) (citing Nixon v. City and County of Denver, 784 F.3d 1364, 1370 (10th Cir. 2015). Neither should this Court have to parse the Complaint to determine exactly how Plaintiffs' claims might fail under Rule 12(b)(6) (or Rule 8) in the absence of the Archuleta Defendants properly bringing those failures to the Court's attention. See Am. Fam. Mut. Ins. Co. v. Tamko Bldg. Prod., Inc., 178 F.Supp.3d 1121, 1127 (D. Colo. 2016) (“Plaintiff's argument in this regard is rather superficial and underdeveloped, which in itself would absolve the court of the obligation to address it substantively.”). Thus, given the Archuleta Defendants' underdeveloped and unspecific arguments, and construing the Complaint liberally and the well-pleaded factual allegations in Plaintiffs' favor, the Court finds the Archuleta Defendants' Rule 8/Rule 12(b)(6) arguments fail.
Plaintiffs' allegations concerning the Archuleta Defendants differ from those against the La Plata Defendants, resulting in this Court's different recommendations on their respective Motions to Dismiss. As the Court referenced, there are factual allegations against the Archuleta Defendants which those Defendants have not addressed in the context of their cursory arguments for dismissal. The La Plata Defendants, on the other hand, did address the factual allegations against them, which were sparse allegations at best.
c. Qualified Immunity
The Archuleta Defendants claim qualified immunity as an additional basis for dismissal. Yet, like their undeveloped Rule8/Rule 12(b)(6) arguments above, the Archuleta Defendant's qualified immunity claims similarly fail.
When the qualified immunity defense is raised, the plaintiff bears the burden to show: (1) the defendant's alleged conduct violated a constitutional right; and (2) the right was clearly established at the time of the conduct “such that every reasonable officer would have understood, that such conduct constituted a violation of that right.” Perea v. Baca, 817 F.3d 1198, 1202 (10th Cir. 2016) (quotation omitted). If the plaintiff fails to satisfy either prong, a defendant is entitled to qualified immunity. Pearson v. Callahan, 555 U.S. 223, 236 (2009). The court has the discretion to consider these prongs in any order. Leverington v. City of Colorado Springs, 643 F.3d 719, 732 (10th Cir. 2011). Whether defendants are entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007).
The Archuleta Defendants' qualified-immunity argument, in toto, is:
Plaintiffs have failed to plead facts of any kind indicating that Archuleta County Defendants violated either their statutory or constitutional rights, much less that those rights were clearly established. In fact, Plaintiffs appear to allege the opposite in their Complaint, conceding that: (1) the preceding landowner expressly consented to public use of the turnaround; (2) that they did not permanently obstruct access to the turnaround until 2017, eight years after the purchase of 86 Hummingbird Place, and; (3) it was previously decided that Plaintiffs' rights had not been violated, as the turnaround was lawfully acquired by the Defendants pursuant to COLO. REV. STAT. § 43-2- 201(1)(c). Furthermore, Plaintiffs' Complaint indicates that their alleged rights to the turnaround were indeterminate at best. Plaintiffs admit that a dispute over legal ownership of the 8 turnaround began in 2017, prompting a declaratory judgment action to be initiated by Archuleta County. This action remained in litigation for several years before going to trial in 2021. Undoubtedly, these facts demonstrate that Plaintiffs' alleged legal rights to the turnaround were not clearly established.
Dkt. 29, pp.7-8 (emphasis added).
But whether the Complaint plausibly alleges that Plaintiffs' “alleged legal rights to the turnaround” are clearly established is not the question for qualified-immunity purposes. The question for qualified-immunity is whether the Complaint plausibly alleges the violation of a constitutional right that was clearly established. The Archuleta Defendants did not even make these arguments, and this Court is not under an obligation to scour the Complaint to make these arguments for them. See, e.g., A Brighter Day, Inc. v. Barnes, 860 Fed.Appx. 569, 576 n.6 (10th Cir. 2021) (declining to address the district court's denial of qualified immunity where denial was based on a “woefully underdeveloped” argument).Consequently, the Court RECOMMENDS the Archuleta MTD be DENIED.
The Court notes qualified immunity is a defense against individual liability. It would not absolve the claims against the Archuleta Board or any official capacity claims.
* * *
For the reasons shared above, the Court RECOMMENDS (1) the Wilson MTD be GRANTED, and Wilson be DISMISSED from this case, (2) the La Plata MTD be GRANTED, and the La Plata Defendants be DISMISSED, and (3) the Archuleta MTD be DENIED.
Be advised the parties have 14 days after service of this recommendation to serve and file any written objections to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz , 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within 14 days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn , 474 U.S. 140, 155 (1985); Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991).
No party has argued or discussed whether the Rooker-Feldman doctrine is implicated by Plaintiff's claims. See PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1193 (10th Cir. 2010) (“Generally, the Rooker-Feldman doctrine precludes lower federal courts from effectively exercising appellate jurisdiction over claims actually decided by a state court and claims inextricably intertwined with a prior state-court judgment.) (internal quotes and citation omitted). And without more, although it appears to this Court that it may be implicated, the Court cannot determine on this record whether the doctrine applies.
The Court also RECOMMENDS dismissal against John Does 1-3 because there is no provision in the Federal Rules of Civil Procedure for naming fictitious or anonymous parties in a lawsuit. Coe v. U.S. Dist. Ct. for Dist. of Colo., 676 F.2d 411, 415 (10th Cir. 1982); Conyac v. Noonan, No. 11-CV-02730-PAB-CBS, 2013 WL 4434369, at *4 (D. Colo. Aug. 16, 2013); see Fed.R.Civ.P. 10(a) (“Every pleading must have a caption . . . [t]he title of the complaint must name all the parties[.]”). And further, the time to serve these anonymous parties has passed.