Opinion
Civil Action No. 18-cv-00866-WJM-NRN
08-08-2019
ENRIQUE PARRA, JR., Plaintiff, v. KEITH STAMBAUGH, Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT (DKT. #85)
This matter is before the Court on the Plaintiff's Motion for Leave to File Third Amended Complaint (Dkt. #85), referred to me by Judge William J. Martinez on July 10, 2019. (Dkt. #86.) Defendant filed a Response in Opposition to Plaintiff's Motion to Amend Complaint (Dkt. #88), Plaintiff submitted a reply (Dkt. #90), and the Court heard argument from the parties at a hearing on August 5, 2019. (Dkt. #91.) The motion is ripe for review. Having reviewed the entire case file and being sufficiently advised, the Court RECOMMENDS that the Motion be DENIED.
I. Summary of the Case
Plaintiff, Enrique Parra, Jr., is a pretrial detainee at the Chaffee County Jail in Salida, Colorado. Mr. Parra initiated this action by filing pro se a Prisoner Complaint (Dkt. #1) claiming his constitutional rights were violated while he was in the custody of the Alamosa County Sheriff's Department. On April 26, 2018, Magistrate Judge Gordon P. Gallagher ordered Mr. Parra to file an amended complaint that clarifies his claims. (Dkt. #8.) On May 17, 2018, Mr. Parra filed an amended Prisoner Complaint asserting claims against Mr. Stambaugh for sexual harassment and sexual assault, and five other defendants claiming that they failed to take action to enforce federal and state law after Mr. Parra complained of the sexual harassment and sexual assault. (Dkt. #11.) Senior Judge Lewis T. Babcock dismissed Mr. Parra's claims against the five other defendants (Dkt. #13), and the case was assigned to Judge William J. Martinez on August 10, 2018. (Dkt. #25.) Mr. Parra filed a motion seeking pro bono counsel (Dkt. #19), and this Court granted that motion on October 9, 2018. (Dkt. #40.) Pro Bono counsel for Mr. Parra entered their appearance on December 21, 2018 (Dkt. #60) and submitted a Second Amended Complaint and Jury Demand on February 25, 2019. (Dkt. #72.)
In his Second Amended Complaint, Mr. Parra alleges he was sexually harassed and sexually assaulted by Keith Stambaugh, an Alamosa County deputy sheriff, in September 2017, and that after Mr. Parra complained to prison officers about the assault, Mr. Stambaugh, along with other officers, retaliated against Mr. Parra by causing groundless criminal complaints against Mr. Parra.
Soon thereafter, Mr. Parra was transferred to the Chaffee County Detention Center, where he complained again about Mr. Stambaugh's sexual assault. According to Mr. Parra, Detective Sam Coffman was assigned by the Alamosa County Sherriff's Office ("ACSO") to investigate Mr. Parra's claims, but, according to Mr. Parra, Detective Coffman failed to do a legitimate investigation and instead "turned the screws" on Mr. Parra by filing an arrest warrant seeking charges for three felonies and one misdemeanor against Mr. Parra on March 14, 2018. Two of the charges were dropped by the Alamosa County District Court for want of probable cause, and Mr. Parra was acquitted of the remaining two charges after a three-day jury trial in December, 2018. On February 26, 2019, Counsel for Mr. Parra sent a letter to the ACSO's office and Board of County Commissioners notifying them of Mr. Parra's claim against Detective Coffman. (Dkt. #85-2.)
II. Analysis
In his proposed Third Amended Complaint, Mr. Parra seeks to add a single claim under Colorado state law for malicious prosecution against Detective Coffman. Mr. Stambaugh objects, arguing that the Court lacks jurisdiction for three reasons. First, Mr. Stambaugh argues that Mr. Parra's claim is barred by the Colorado Governmental Immunity Act ("CGIA") because Mr. Parra fails to allege he timely filed a required written notice of claim. Second, Mr. Stambaugh argues that Mr. Parra failed to allege sufficient facts to support his claim that Detective Coffman acted "willfully and wantonly" as required by the CGIA to maintain a tort claim against a public employee. See Colo. Rev. Stat. §§ 24-10-118(2)(a) & 24-10-110(5)(a). Third, Mr. Stambaugh argues that the Court lacks supplemental jurisdiction. Because the Court finds that Mr. Parra did not timely submit a notice of his claim under the CGIA, the Court need not address the second and third arguments made by Mr. Stambaugh.
Under the CGIA, an injured person seeking damages from a public entity or employee must provide written notice of the claim within 182 days of discovery of the injury. Colo. Rev. Stat. § 24-10-109(1). The failure to comply with the 182-day period is an absolute jurisdictional bar to suit. Mesa Cty. Valley Sch. Dist. No. 51 v. Kelsey, 8 P.3d 1200, 1206 (Colo. 2000). "Unlike under ordinary statutes of limitations, a plaintiff cannot invoke equitable defenses such as waiver, tolling, or estoppel to overcome the CGIA 180-day [now 182] notice of claim provision." City and Cty. of Denver v. Crandall, 161 P.3d 627, 633 (Colo. 2007) (en banc) (citation omitted). Further, "[t]he CGIA is a non-claim statute that does not recognize tolling for those occurrences that are continuous in nature." Id. at 634 (citation omitted). The burden is on the plaintiff to prove "jurisdictional facts adequate to support subject matter jurisdiction." Id. at 632.
The Colorado Supreme Court has made clear that "[f]or purposes of the CGIA, the notice period is triggered when a claimant has only discovered that he or she has been wrongfully injured." Gallagher v. Bd. of Trustees for Univ. of N. Colo., 54 P.3d 386, 391 (Colo. 2002) (internal quotation marks and citation omitted). Plaintiff concedes that under Colorado law, "claims for malicious prosecution accrue for purposes of filing a notice letter under the GIA when claimants are aware that allegedly improper charges have been filed against them." Masters v. Castrodale, 121 P.3d 362, 364-65 (Colo. App. 2005). Plaintiff also concedes that the CGIA 182-day time period expired prior to the date the notice was sent to Alamosa County, noting that the time period expired before counsel for Plaintiff agreed to represent Mr. Parra. (Dkt. #90 at 2.)
Acknowledging that the CGIA notice period is subject to a strict compliance standard and that the weight of the case law militates in favor of dismissal, Plaintiff argues that there is precedent in Colorado to support a finding that the notice period may commence on a later date when plaintiff is under a legal disability. Plaintiff cites two Colorado Court of Appeals cases, which he admits are distinguishable, to support his argument: Visser ex rel. Eder v. Mahan, 111 P.3d 575 (Colo. App. 2005) and Cintron By & Through Cintron v. City of Colorado Springs By & Through Mem'l Hospital, 886 P.2d 291 (Colo. App. 1994). In the Visser case, the plaintiff was rendered unconscious by the allegedly tortious conduct and the court held that the notice period was not triggered until an individual was appointed to act on the incapacitated plaintiff's behalf. Visser, 111 P.3d at 577-78. In the Cintron case, the plaintiff was a brain injured minor, and the court refused to charge the plaintiff with her parent's knowledge to find that the notice period had expired. Cintron, 886 P.2d at 292-93.
Plaintiff also cites Clark v. Tinnin, 731 F. Supp 998, 1001 (D. Colo. 1990), arguing that the court in that case left open the possibility that the 182-day notice period could be tolled for an incarcerated pro se plaintiff. In the Clark case, the court granted summary judgment in favor of the defendant, rejecting the pro se plaintiff's argument that the 182-day notice requirement should not be strictly construed because he was incarcerated during the notice period, did not have meaningful access to an attorney and was unaware of the 182-day notice requirement until after it had expired. Id. at 1001. The plaintiff in Clark did not support his assertions with any factual evidence and the court accordingly ruled that it could not accept as true the plaintiff's reasons for his failure to timely file his notice. Mr. Parra argues that the court's ruling in Clark suggests that the court may have reached a different result if the plaintiff had been able to support his assertions.
The Court agrees that these cases are distinguishable from the instant case and declines Mr. Parra's invitation to extend an exception to the 182-day notice period to cover a legal disability based on Mr. Parra's incarceration and lack of counsel, which the court finds difficult to accept given that Mr. Parra was able to file this lawsuit without the assistance of counsel on April 12, 2018. (Dkt. #1.) In so doing, the Court finds nothing inappropriate about Plaintiff's argument, which was made in good faith and with complete candor, for an extension of existing caselaw.
CONCLUSION
Because Plaintiff failed to give timely notice of his claim against Detective Coffman within the time required by the CGIA, the proposed amendment would be futile. Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1288 (10th Cir. 2008) (A court is not required to grant leave to amend "if amendment would be futile. . . . A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.") (citation omitted). For this reason, the Court RECOMMENDS that Plaintiff's Motion for Leave to file Third Amended Complaint be DENIED. NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2) , the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn , 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colorado Dep't of Corrections , 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996). Date: August 8, 2019 /s/_________
N. Reid Neureiter
United States Magistrate Judge