Opinion
Civil Action 20-cv-02862-CMA-NYW
07-23-2021
STACIE R. TRUJILLO and CHAD S. KELLER, Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS FOR WELD COUNTY, STEVEN G. WRENN, in his individual and official capacities, ANTHEA L. CARRASCO, in her individual and official capacities, ERIE POLICE DEPARTMENT, KIMBERLY A. STEWART, in her individual and official capacities, RICHARD L. MATHIS, in his individual and official capacities, BRANIN NEWMAN, in his individual and official capacities, CHRISTINA MUZZIPAPA, in her individual and official capacities, KATE GOMOLSON, in her individual and official capacities, JAMES D. HOYSICK, JR., in his individual and official capacities, and BOBBY G. SISNEROS, JR., Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
NINA Y. WANG UNITED STATES MAGISTRATE JUDGE
These matters come before the court for recommendation on the following:
(1) Defendants Erie Police Department, Kimberly A. Stewart, Richard L. Mathis, Branin Newman, and Christina Muzzipapa's (collectively, “EPD Defendants”) Motion to Dismiss Second Amended Complaint (“EPD Motion to Dismiss”) [#80, filed February 11, 2021];
(2) Defendants Anthea L. Carrasco, Steven G. Wrenn, and Board of County Commissioners of Weld County's (collectively, “Weld County Defendants”) Motion to Dismiss Plaintiffs' Second Amended Complaint (“Weld County Motion to Dismiss”) [#81], filed February 11, 2021;
(3) Defendant James D. Hoysick, Jr.'s Motion to Dismiss Plaintiffs' Second Amended Complaint (“Hoysick Motion to Dismiss”) [#82], filed February 21, 2021; and
(4) Defendant Kate Gomolson's Motion to Dismiss (“Gomolson Motion to Dismiss”)[#90], filed March 22, 2021.
The undersigned considers the Motions pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated November 18, 2020 [#34], and the Memoranda dated February 16 and March 25, 2021 [#84, #91]. This court concludes that oral argument will not materially assist in the resolution of these matters. Accordingly, having carefully reviewed the Motions and associated briefing [#89, #92, #93, #94, #95, #96], the docket, and applicable law, this court respectfully RECOMMENDS that the Motions to Dismiss be GRANTED.
BACKGROUND I. Factual History
The following facts are drawn from Plaintiffs' operative Second Amended Complaint and are, unless otherwise noted, taken as true for purposes of the instant Motions to Dismiss.
Plaintiff Stacie R. Trujillo (“Ms. Trujillo”) divorced Defendant Bobby Sisneros, Jr. (“Mr. Sisneros”) on or about April 26, 2017, after contentious proceedings in the Adams County District Court in Adams County, Colorado. [#76 at ¶ 20]. Following the divorce, Ms. Trujillo was awarded primary physical and legal custody of the two minor children shared by Ms. Trujillo and Mr. Sisneros. [Id.].
On or about May 6, 2018, Plaintiff Chad S. Keller (“Mr. Keller” and collectively with Ms. Trujillo, “Plaintiffs”), an author and investigative journalist, traveled to Colorado to collaborate with Ms. Trujillo on an exposé of family court corruption and, specifically, Ms. Trujillo's experience with the same during her divorce proceedings. [#76 at ¶ 21]. Mr. Keller stayed with Ms. Trujillo and her two children during his six-day Colorado visit. [Id.]. Plaintiffs' relationship was strictly professional, and Mr. Keller slept on the couch throughout his stay. [Id.].
Approximately two days after Mr. Keller arrived in Colorado, Ms. Trujillo introduced him to Mr. Sisneros, explaining to her ex-husband that Mr. Keller was in town to help her write a book. [#76 at ¶ 22]. Later that same day, at approximately 9:00 p.m., Mr. Sisneros contacted Defendant Erie Police Department (or “EPD”) regarding Mr. Keller's presence around his children. [Id. at ¶ 23]. Specifically, Mr. Sisneros told EPD that Mr. Keller, who Mr. Sisneros claimed was a registered sex offender, was residing at Ms. Trujillo's home where Mr. Sisneros's children were present. [Id.]. EPD dispatched two officers to Ms. Trujillo's residence in response to Mr. Sisneros's phone call. [Id. at ¶ 24].
When the EPD officers arrived to Ms. Trujillo's residence, Mr. Keller provided the officers with his Georgia state driver's license. [#76 at ¶ 24]. The officers performed a background check, which did not show that Mr. Keller was a registered sex offender. [Id.]. The officers subsequently left Ms. Trujillo's residence and informed Mr. Sisneros that his claim that Mr. Keller was a registered sex offender had not been substantiated by their records. [Id.].
On or about May 10, 2018, Mr. Sisneros and/or his attorney, Defendant Kate Gomolson (“Ms. Gomolson” or “Defendant Gomolson”), requested Mr. Keller's criminal history records from Georgia state courts. [#76 at ¶ 25]. This record request revealed that Mr. Keller was discharged from a sexual offense without a conviction pursuant to Georgia's First Offender Act, O.C.G.A. § 42-8-60, upon his completion of a first-offender program offered by the state of Georgia. [Id.].
On or about May 14, 2018, Ms. Gomolson filed a motion to restrict parenting time in Adams County District Court on behalf of her client, Mr. Sisneros. [#76 at ¶ 26]. Therein, Ms. Gomolson alleged that Mr. Keller was a “convicted sex offender” living with Ms. Trujillo. [Id.]. As supporting evidence, Ms. Gomolson presented pictures of a moving pod present at Ms. Trujillo's residence and falsely alleged that the moving pod belonged to Mr. Keller. [Id.]. Plaintiffs allege that Ms. Gomolson knew or recklessly disregarded the fact that the foregoing statements were false. [Id.].
Based upon the foregoing “patently false statements” in Ms. Gomolson's motion, the Honorable Roberto Ramirez (“Judge Ramirez”) of the Adams County District Court signed an order restricting Ms. Trujillo's parenting time “without providing [Ms. Trujillo] any opportunity to be heard.” [#76 at ¶ 27]. Shortly thereafter, Defendant Branin Newman (“Officer Newman”) arrived at Ms. Trujillo's residence and informed Ms. Trujillo that the Adams County District Court had ordered her to relinquish custody of her children to Mr. Sisneros. [Id. at ¶ 28]. Officer Newman refused to provide a copy of the child custody court order, falsely informing Ms. Trujillo that he was not permitted to show or provide her with a copy of the court order pursuant to EPD policy. [Id.].
Believing Officer Newman and Mr. Sisneros “were conspiring to illegally and/or improperly take physical custody of the children, ” [#76 at ¶ 29], Ms. Trujillo denied Officer Newman entry into her home and called 911. [Id.]. Emergency dispatch connected Ms.
Trujillo to Defendant Richard L. Mathis, Deputy Chief of the EPD (“Deputy Chief Mathis”). [Id. at ¶ 31]. In turn, Deputy Chief Mathis called Officer Newman to inform Officer Newman that he was not authorized to force Ms. Trujillo to relinquish physical custody of the children to Mr. Sisneros, before calling Ms. Trujillo back to express his surprise that she had not been provided with a copy of the court order. [Id. at ¶¶ 31, 32].
Shortly thereafter, Officer Newman was dispatched to Ms. Trujillo's residence. [#76 at ¶ 33]. There, he made contact with Plaintiffs through an open window. [Id.]. Mr. Keller explained to Officer Newman that he was never convicted of a sexual offense. [Id.]. Officer Newman explained to Plaintiffs that he did not have authority to force Ms. Trujillo to relinquish physical custody of the children to Mr. Sisneros until Adams County served a copy of the child custody court order on Ms. Trujillo. [Id.]. He further explained that he was present for a “courtesy assist” on behalf of Mr. Sisneros related to the same. [Id.].
The same day, at approximately 5:45 p.m., Plaintiffs and one of Ms. Trujillo's children drove to the EPD to request a copy of the child custody court order from Deputy Chief Mathis and Officer Newman. [#76 at ¶ 34]. Neither Deputy Chief Mathis nor Officer Newman provided a copy of the court order, explaining to Plaintiffs that they lacked jurisdiction to serve the Adams County court order and “do not get involved in civil disputes.” [Id.].
Approximately three hours later, Officer Newman called Ms. Trujillo and informed her of his recent conversation with Weld County District Attorney Anthea Carrasco (“D.A. Carrasco”). [#76 at ¶ 35]. As Officer Newman explained to Ms. Trujillo, D.A. Carrasco advised Officer Newman to inform Ms. Trujillo of her two interim alternatives: either (1) a third party stay at Ms. Trujillo's residence, or (2) Mr. Keller vacate the residence immediately. [Id. at ¶ 36]. Ms. Trujillo refused to comply with this instruction. [Id. at ¶ 37]. Officer Newman subsequently called Mr. Sisneros, advising him to take legal action against Ms. Trujillo for her refusal to comply. [Id.].
On or about May 15, 2018, Ms. Gomolson filed an amended motion to restrict parenting time in Adams County District Court. [#76 at ¶ 38]. Therein, Ms. Gomolson requested an amendment to the May 14 child custody court order whereby the EPD would be permitted to forcibly remove Ms. Trujillo's children via “any lawful means.” [Id.]. In addition to citing Ms. Trujillo's failure to comply with the directions and advice of D.A. Carrasco, Officer Newman, and the EPD as grounds for the amendment [id.], Ms. Gomolson also alluded to a likelihood that Ms. Trujillo was “‘using drugs because she is dating a sex offender,' or words to that effect, ” [id. at ¶ 39], and asserted that the children were in “imminent danger”-statements which Ms. Gomolson either knew to be false or made with reckless disregard to their falsity [id. at ¶¶ 38-39].
That same day, “based up patently false statements and assertions including ‘imminent danger, '” Judge Ramirez signed an order to remove the children from Ms. Trujillo's residence “without providing [her] any opportunity to be heard.” [#76 at ¶ 40]. Mr. Sisneros delivered the amended court order to the EPD later the same day. [Id.]. The Chief of the EPD, Defendant Kimberly Stewart (“Chief Stewart”), contacted a courthouse in Weld County, Colorado, for advice on how to proceed with the amended court order. [Id.].
In response, Weld County Deputy District Attorney Steve Wrenn (“D.A. Wrenn” and collectively with D.A. Carrasco, the “D.A. Defendants”) advised an EPD police officer to instruct Mr. Sisneros to pick up one of the children from school. [#76 at ¶ 41]. Mr. Sisneros followed this instruction and, shortly thereafter, EPD police officer Christina Muzzipapa (“Officer Muzzipapa”) took physical custody of the second child at Ms. Trujillo's residence. [Id.]. Ms. Trujillo was not served with the original or amended court order at the time of the physical removal of the children from her custody, [id.], and later received a copy of the amended court via regular mail on or about May 17, 2018 [id. at ¶ 42].
Prior to a May 24, 2018 child custody hearing related to the foregoing events, Ms. Trujillo attempted to serve subpoenas on Deputy Chief Mathis and Officer Newman and obtain a copy of the May 14, 2018 incident report, but her efforts were intentionally thwarted by the EPD. [#76 at ¶¶ 44, 45]. As a result, Ms. Trujillo was “severely prejudiced” at the May 24 hearing. [Id. at ¶ 45].
During the May 24, 2018 hearing, Ms. Gomolson elicited testimony from Mr. Sisneros concerning Mr. Keller's criminal history and case file from a county court in Georgia. [#76 at ¶ 46]. Mr. Sisneros testified in part about “a case file that [he] got from Habersham County on what [Mr. Keller] did for sexual exploitation of children.” [Id.]. However, Mr. Keller was “not convicted of any sexual offense and the offense for what he was subject to was not exploitation of children.” [Id.] (emphasis in original). Even though Ms. Gomolson “knew such assertion was patently false, ” she allowed her client “to lie to the court by stating [Mr.] Keller was involved with exploitation of children.” [Id.]. She also presented to the Adams County District Court “an incomplete and misleading” case file concerning Mr. Keller's criminal history, “because she only presented the allegation and not the entire file which indicated that [Mr.] Keller was not convicted for that offense or any sexual offense.” [Id.] (emphasis is original).
At the same hearing, after Ms. Gomolson and/or Mr. Sisneros falsely represented to the Adams County District Court that Ms. Trujillo struggled with substance abuse-and much to Ms. Trujillo's surprise given that she “has never illegally used any controlled substance”-the Adams County District Court ordered Ms. Trujillo to undergo hair follicle substance abuse testing. [#76 at ¶ 47] (emphasis in original). “This order was the fraudulent creation of . . . false[] assert[ions] to the Court that [Ms. Trujillo] has a substance abuse issue.” [Id.].
On March 1, 2019, licensed Certified Family Investigator (or “CFI”) James Hoysick, Jr. (“Mr. Hoysick” or “Defendant Hoysick”), upon request from the Adams County District Court, issued a report (“CFI Report”) concerning his investigation into the matters underlying the foregoing child custody dispute. [#76 at ¶ 48]. In his CFI Report, Mr. Hoysick presented “extremely biased analysis and recommendations” to the Adams County District Court by, inter alia, (a) falsely asserting that Ms. Trujillo “exhibited indications” of a substance abuse problem with methamphetamine based on his “erronerous interpretation of a hair follicle test that neglected to take into account [her] prescriptions, ” [id. at ¶ 48(b)]; (b) falsely claiming the children had accumulated an excessive number of tardy arrivals to and/or absences from school under Ms. Trujillo's physical custody [id. at ¶ 48(d)]; (c) “deliberately downplaying [Mr.] Sisneros's domestic violence conviction, ” [id. at ¶ 48(h)]; (d) “neglecting to address” Ms. Trujillo's accusation that Mr. Sisneros was “habitually intoxicated” when he engaged in acts of domestic violence against her [id. at ¶ 48(i)]; and (e) “stating expert opinions for which he does not possess the requisite certification, ” [id. at ¶ 48(1)].
In the summary of his CFI Report, Mr. Hoysick concludes that
“[Ms. Trujillo's] obsession with the family court system and her supposed advocacy combing with intentions of publishing a book regarding her story in this case along with the influence of Mr. Keller in escalating conflict raise the serious question as to whether Ms. Trujillo is actively endangering her children to result in a tragedy, which she would use to generate recognition in her story.”[#76 at ¶ 46(u)]. Plaintiffs assert that this summary is “inappropriate, not based upon facts, presents an unwarranted opinion and unquestionably shows Defendant Hoysick's actual and implied bias against” Ms. Trujillo. [Id.]. In addition to his CFI Report, Mr. Hoysick later testified as a witness at a hearing on the same in Adams County District Court. [Id. at ¶ 48(a)].
According to Plaintiffs, “[a]s a direct, immediate and proximate result of all of the preceding allegations, ” on April 17, 2019, “the Adams County District Court effectively ordered that [Ms. Trujillo] lose all [sic] her parenting rights.” [#76 at ¶ 49]. Pursuant to the Adams County District Court order dated April 17, 2019, Ms. Trujillo was permitted “no physical custody subject to capricious and unattainable restrictions that were not objectively reasonable”; no legal custody; no contact with her children; and no alimony or child support. [Id.]. As a result, Ms. Trujillo was rendered homeless in January 2019 [id. at ¶ 50], and diagnosed with Post Traumatic Stress Disorder (or “PTSD”) in May 2019 [id. at ¶ 51].
Mr. Keller adds that Defendants' conduct caused him “to be seen as the worst kind of criminal, ” [#76 at ¶ 101], and alleges that his “liberty was lost” when “he suffered severe emotional distress” caused by “feeling at fault while Plaintiff Trujillo lost all her parenting rights, ” [id. at ¶ 102].
II. Procedural History
Plaintiffs initiated this action pro se by filing their original Complaint on September 22, 2020. See generally [#1]. After the Honorable Gordon P. Gallagher issued an Order Directing Plaintiffs to Cure Deficiencies [#3], and Plaintiffs filed the requisite filing fee [#4], this action was drawn to the undersigned [#5]. Upon the Parties' non-consent to the jurisdiction of a Magistrate Judge, this matter was reassigned to the Honorable Christine M. Arguello [#33] and referred to the undersigned for all motions proceedings pursuant to 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72 [#34].
Mr. Keller still proceeds pro se and ordinarily, would be entitled to a liberal construction of his papers. Smith v. Allbaugh, 921 F.3d 1261, 1268 (10th Cir. 2019). The United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) has explained that “[w]e believe that this rule means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the [party]'s failure to cite proper legal authority, confusion of various legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). An examination of the operative Second Amended Complaint and the omnibus Response to the instant Motions to Dismiss [#89], however, suggests both were drafted by counsel on behalf of both Ms. Trujillo and Mr. Keller. Accordingly, this court is disinclined to apply the liberal construction. Cf. Tatten v. City & County of Denver, 730 Fed.Appx. 620, 624 (10th Cir. 2018) (declining to apply the liberal-construction rule to filings made by a pro se attorney). Even if the court applied the liberal-construction rule, the ultimate conclusions would not change. Indeed, a court cannot and does not act as an advocate for a pro se party. United States v. Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019). Nor does a party's pro se status exempt him from complying with the procedural rules that govern all civil actions filed in this District, namely, the Federal Rules of Civil Procedure and the Local Rules of Practice for the District of Colorado. See Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018); Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008).
Ms. Trujillo later retained counsel, who entered his appearance on November 23, 2020. See [#27]. Shortly thereafter, Plaintiffs sought leave to file a First Amended Complaint. [#45, filed December 9, 2020]. Because Defendants subsequently indicated no opposition to the filing of a First Amended Complaint, see [#50], this court construed docket entry [#45] as a Notice of Filing an Amended Pleading pursuant to D.C.COLO.LCivR 15.1(a) and directed the Clerk of the Court to accept for filing the tendered First Amended Complaint. [#52]. See also [#71 (First Amended Complaint)].
On January 7, 2021, Plaintiffs filed a Motion for Leave to File Second Amended Complaint and Jury Demand (“Second Motion to Amend”). [#64]. Given the lack of opposition to the relief requested therein, see [id. at 2], this court construed the Second Motion to Amend as stipulated pursuant to D.C.COLO.LCivR 15.1(a) and directed the Clerk of the Court to accept for filing the tendered Second Amended Complaint. [#75]. Accordingly, the Second Amended Complaint was filed on January 21, 2021 [#76]; then-pending dispositive motions premised on the superseded First Amended Complaint were denied as moot [#79]; and Defendants were ordered to file pleadings responsive to the Second Amended Complaint on or before February 11, 2021 [#79].
In the operative Second Amended Complaint, Plaintiffs contend that Defendants' conduct caused the Adams County District Court to wrongfully revoke Ms. Trujillo's parental rights, which in turn led Plaintiffs to experience emotional and financial harm. Ms. Trujillo asserts three claims against Defendants, including two related § 1983 claims for (1) deprivation of her right to familial association without due process in violation of the Fourteenth Amendment (“Claim I”) against all Defendants, and (2) conspiracy to commit the same (“Claim II”) against all Defendants except Mr. Hoysick; and (3) a state law claim for fraud upon the court against Defendant Gomolson (“Claim III”). [#76 at 27- 33]. Mr. Keller, proceeding pro se, asserts two of his own claims for “Deprivation of Right to liberty, dignity, ordinary civilian opportunity to work and earn a living, being treated by society as the worst kind of criminal by both slander and libel conspired with intentional harm” pursuant to 28 U.S.C. § 4101 (“Claim IV”) and § 1983 (“Claim V”), respectively. [Id. at 32-39]. He asserts Claim IV against Mr. Sisneros, Mr. Hoysick, and Ms. Gomolson, and Claim V against all Defendants. [Id.]. Plaintiffs both seek relief in the form of unspecified (a) “[i]mmediate injunctive relief”; (b) “[a]ppropriate declaratory relief”; (c) compensatory and punitive damages; and (d) costs and fees. [Id. at 39].
It is not clear from the operative Second Amended Complaint that Mr. Keller joins Ms. Trujillo in asserting Claim III for fraud on the court against Defendant Gomolson, particularly because he has not identified any injury specific to him with respect to Claim III. [#76 at ¶¶ 74-80 (contending that “[a]s a direct, immediate and proximate result of Defendant Gomolson's conduct Plaintiff's loss of her familial association with Children.”)]. Such a claim would not be viable, in any case, because as discussed in more detail below, Mr. Keller neither appeared before the Adams County District Court nor was subject to any of its orders.
On February 11, 2021, the EPD Defendants, the Weld County Defendants, and Mr. Hoysick filed Motions to Dismiss the Second Amended Complaint. [#80, #81, #82]. All three seek dismissal for failure to state a cognizable claim. The EPD and Weld County Defendants also invoke qualified and/or absolute immunity as a defense to suit [#80, #81]; and the EPD Defendants challenge this court's subject matter jurisdiction [#80]. On February 22, 2021, Plaintiffs and the EPD Defendants, Weld County Defendants, Ms. Gomolson, and Mr. Hoysick filed a Stipulated Motion to Stay (or “Motion to Stay”) [#86]. Therein, the Parties requested a stay of all proceedings and discovery in this matter pending resolution of the instant Motions to Dismiss. [Id.]. The undersigned granted in part and denied in part the Motion to Stay, ordering discovery stayed until this court issued its Recommendation on the instant Motions to Dismiss. [#88].
Ms. Gomolson had not yet filed a responsive pleading because she was not served until January 25, 2021. See [#86 at 2 n.1]. Given the date of service and the Parties' stipulation to a March 22, 2021 deadline for Ms. Gomolson's responsive pleading, the Gomolson Motion to Dismiss was not filed for another 30 days. See [id.]; see also [#90].
On March 18, 2021, Plaintiffs filed their collective “Response to Defendants' Motions to Dismiss [Doc. Nos. 80, 81, and 82]” (or “Response”). [#89]. Four days later, Ms. Gomolson filed her Motion to Dismiss, asserting both subject matter jurisdiction and failure-to-state-a-claim arguments for dismissal. [#90]. The Weld County Defendants, EPD Defendants, and Mr. Hoysick filed replies to their respective Motions to Dismiss [#92, #93, #94]. Plaintiffs responded to the Gomolson Motion to Dismiss [#95], and Ms. Gomolson replied [#96]. The Motions to Dismiss are thus ripe for Recommendation.
LEGAL STANDARDS
I. Rule 12(b)(1)
Federal courts are courts of limited jurisdiction. Under Article III of the United States Constitution, federal courts only have jurisdiction to hear certain “cases” and “controversies.” Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014). As such, courts “are duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction.” The Wilderness Soc. v. Kane Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring). Indeed, courts have an independent obligation to determine whether subject matter jurisdiction exists, even in the absence of a challenge from any party. 1mage Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)).
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may bring either a facial or factual attack on subject matter jurisdiction, and a court must dismiss a complaint if it lacks subject matter jurisdiction. See Pueblo of Jemez v. United States, 790 F.3d 1143, 1147 n.4 (10th Cir. 2015). For a facial attack the court takes the allegations in the Complaint as true; for a factual attack the court may not presume the truthfulness of the Complaint's factual allegations and may consider affidavits or other documents to resolve jurisdictional facts. Rural Water Dist. No. 2 v. City of Glenpool, 698 F.3d 1270, 1272 n.1 (10th Cir. 2012) (citing Holt v. United States, 46 F.3d 1000, 1002- 03 (10th Cir. 1995)). The burden of establishing jurisdiction rests with the party asserting jurisdiction. See Kline v. Biles, 861 F.3d 1177, 1180 (10th Cir. 2017).
II. Rule 12(b)(6)
“To survive a [Rule 12(b)(6)] 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.” Walker v. Mohiuddin, 947 F.3d 1244, 1248-49 (10th Cir. 2020) (internal quotation marks omitted). “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.” Cummings v. Dean, 913 F.3d 1227, 1238 (10th Cir. 2019) (internal quotation marks omitted). In making this determination, the “court accepts as true all well pleaded factual allegations in [the] complaint and views those allegations in the light most favorable to the plaintiff.” Straub v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir. 2018).
Nevertheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). See also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that even pro se litigants cannot rely on conclusory, unsubstantiated allegations to survive a 12(b)(6) motion). Rather, “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, 129 S.Ct. 1937, 1949 (2009). See also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (explaining that plausibility refers “to the scope of the allegations in a complaint, ” and that the allegations must be sufficient to nudge a plaintiff's claim(s) “across the line from conceivable to plausible”).
ANALYSIS
All moving Defendants seek to dismiss the Second Amended Complaint for failure to state a cognizable claim. [#80, #81, #82, #90]. With respect to Claims I, II, and V, the EPD and Weld County Defendants assert both statute of limitations and qualified and/or absolute prosecutorial immunity defenses. [#80, #81]. Defendants Hoysick and Gomolson both argue in separate Motions to Dismiss that (a) Plaintiffs' § 1983 claims against them fail because they are not state actors; (b) any cognizable claim asserted in Claim IV is barred by the statute of limitations; and (c) Plaintiffs fail to plead facts sufficient to support various elements of the claims against Defendants Hoysick (Claims I, II, and IV) and Gomolson (Claims I through V), respectively. See [#82; #90].
Some of the instant Motions also raise jurisdictional challenges. Ms. Gomolson challenges this court's jurisdiction over Claim III as a collateral attack on a state court judgment, see [#90 at 13], and she and the EPD Defendants both move to dismiss the Second Amended Complaint for lack of jurisdiction pursuant to the domestic relations exception to federal jurisdiction and the Rooker-Feldman doctrine, see [#80, #90]. Because the Rooker-Feldman doctrine “implicates [the court's] subject matter jurisdiction, ” this court addresses it first “before turning to the merits of the case.” PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1193 (10th Cir. 2010).
While neither the Weld County Defendants nor Mr. Hoysick raise this jurisdictional challenge to Plaintiffs' claims, courts have an independent obligation to determine whether subject matter jurisdiction exists-even in the absence of a challenge from any party. See 1mage Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)). Considering the issue sua sponte, I find that the following jurisdictional analyses apply equally to Claims I, II, and III as asserted against all Defendants.
I. Subject Matter Jurisdiction
Both the EPD Defendants and Ms. Gomolson seek dismissal of Plaintiffs' claims for lack of subject matter jurisdiction pursuant to the Rooker-Feldman doctrine. See Dist. of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). They also note, perfunctorily, the domestic relations exception to federal court jurisdiction. See [#80 at 7 (“Additionally, domestic relations matters are within the purview of the states and not the federal government.”) (citing In re Burrus, 136 U.S. 586, 593-94 (1980))]; #90 at 13 (stating federal courts lack jurisdiction over state domestic relations matters)]. Ms. Gomolson also challenges Claim III as an impermissible collateral attack on a state court judgment. [#90 at 13].
A. Domestic Relations and Rooker-Feldman
Federal courts lack jurisdiction over domestic-relations cases. See Ankenbrandt v. Richards, 504 U.S. 689, 703, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992) (holding that federal courts lack power “to issue divorce, alimony, and child[-]custody decrees”); Hunt v. Lamb, 427 F.3d 725, 727 (10th Cir. 2005) (holding that district court lacked jurisdiction over child-custody dispute). This is known as the domestic-relations exception, under which a federal court cannot “reopen, reissue, correct, or modify” an order in a domestic-relations case. Leathers v. Leathers, 856 F.3d 729, 756 (10th Cir. 2017). See also Alfaro v. County of Arapahoe, 766 Fed.Appx. 657, 659 (10th Cir. 2019) (affirming dismissal for lack of subject matter jurisdiction under the domestic-relations exception and Rooker-Feldman).
More broadly, the Rooker-Feldman doctrine prevents federal district courts “from exercising jurisdiction over cases brought by state-court losers challenging state-court judgments rendered before the district court proceedings commenced.” Lance v. Dennis, 546 U.S. 459, 460, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006) (per curiam) (internal quotations omitted). It also bars any “action in federal court that alleges an injury ‘inextricably intertwined' with a state court decision, such that success in the federal court would require overturning the state court decision . . . .” Wideman v. Colorado, 242 Fed.Appx. 611, 613-14 (10th Cir. 2007) (quoting Epps v. Creditnet, Inc., 320 F.3d 756, 758- 59 (7th Cir. 2003) (collecting cases)).
Here, the EPD Defendants argue that “all alleged actions taken by EPD Defendants occurred pursuant to Court Orders within the context of a domestic relations matter filed in Adams County, ” which Plaintiffs allege “were unlawful and improperly entered.” [#80 at 7]. Because the Plaintiffs' claims are “so intertwined with the prior actions of a state court and appear[] to seek review and revision of prior Orders entered by a state court, ” argue the EPD Defendants, “their claims should be dismissed for lack of subject matter jurisdiction.” [Id.]. Ms. Gomolson also asserts that this court lacks subject matter jurisdiction over Claims I through V pursuant to Rooker-Feldman. [#90 at 13-14].
In Response, Plaintiffs argue that while this case involves “the extraordinary and extreme decision by the state court to deprive a mother of all custody of her children, ” this action is about what Defendants “did to manipulate the ruling, ” and is not an attempt to “disturb” the state court's ruling. [#95 at 2]; see also [#89 at 4-5]. Without pointing to any authority to support a finding that challenged conduct which allegedly “manipulate[d]” the “extraordinary and extreme decision by the state court” is distinguishable from other cases wherein the Rooker-Feldman has been applied, Plaintiffs simply conclude that any “further discussion regarding this point is inconsequential and needless.” [#95 at 2]; see also [#89 at 4-5].
This court respectfully disagrees with Plaintiffs, and turns to discuss the applicability of Rooker-Feldman to Mr. Keller's and Ms. Trujillo's claims in turn. Isaacs v. DBI-ASG Coinvestor Fund, III, LLC (In re Isaacs), 895 F.3d 904, 912 (6th Cir. 2018) (“The Rooker-Feldman doctrine is properly applied on a claim-by-claim basis, even though it is jurisdictional in nature.”); see also Flanders v. Lawrence (In re Flanders), 657 Fed.Appx. 808, 814 (10th Cir. 2016) (stating that the court “independently consider[s] each claim against the backdrop of the Rooker-Feldman doctrine”).
1. Mr. Keller's Claims
At the outset, this court notes that Mr. Keller's claims (Claims IV and V) are not barred by the Rooker-Feldman because he was not a party to the child custody proceedings in Adams County District Court. See [#95 at 9 (“[T]he state court order never applied to [Mr. Keller].”)]. The doctrine does not bar a federal action when the plaintiff was not a party to the underlying state court action. See Leathers, 856 F.3d at 751 (“[A]s a non-party to the state divorce proceedings, Michael cannot be deemed a state court ‘loser.' The Rooker-Feldman doctrine therefore does not apply.”); Johnson v. Rodrigues, 226 F.3d 1103, 1108-1111 (10th Cir. 2000) (district court erred by dismissing a plaintiff's action under Rooker-Feldman where the plaintiff was not a party to the state court action).
2. Ms. Trujillo's Claims
Unlike Mr. Keller, Ms. Trujillo was the losing party in the state court proceedings underlying this action. And because Claims I, II, and III are premised on the invalidity of various state-court orders issued in Adams County in the course of those proceedings, Ms. Trujillo's claims are precisely the type that are precluded by the Rooker-Feldman doctrine.
Pursuant to the Rooker-Feldman doctrine, a federal district court cannot entertain constitutional claims attacking a state court judgment-even if the state court did not pass directly on those claims-when the constitutional attack is “inextricably intertwined with the state court's judgment.” Mann v. Boatright, 477 F.3d 1140, 1147 (10th Cir. 2007) (quotation marks omitted). “A claim is inextricably intertwined if the state-court judgment caused, actually and proximately, the injury for which the federal-court plaintiff seeks redress.” Tal v. Hogan, 453 F.3d 1244, 1256 (10th Cir. 2006) (internal quotations omitted).
At the outset, I find Ms. Trujillo's assertion that she brings “this action to be compensated for what Defendants did to manipulate . . . the County Court which led to its ruling” and “not to disturb its ruling, ” [#95 at 2] (emphases omitted), plainly belied by the nature of her claims and the relief she seeks in the instant action. Claims I and II seek relief pursuant to § 1983 for alleged violations of Ms. Trujillo's constitutional right to familial association, premised on the deprivation of Ms. Trujillo's right to familial association without due process of law and a conspiracy to so deprive her. [#76 at 27-32]. Claim III asserts that Defendant Gomolson committed fraud on the court in the underlying state court proceedings. [Id. at 32-33]. All three claims assert that Ms. Trujillo's injuries- namely, her loss of physical child custody-were the “direct, immediate and proximate result of Defendants' conduct.” [Id. at ¶¶ 58, 70, 80]. Claims I and II further allege that Defendants' conduct and Ms. Trujillo's loss of custody also caused the Adams County District Court to “effectively order[] that [she] lose all her parenting rights, ” [id. at ¶¶ 59, 71], which in turn caused her to become homeless and/or unable to live on her own [id. at ¶ 60, 72], which led to her PTSD diagnosis in May 2019 [id. at ¶¶ 61, 73].
Section 1983 Claims.
Ms. Trujillo clearly challenges the adverse rulings issued in her child-custody case, “as well as allegations and statements made in various pleadings, motions, and reports, and [her] purported treatment by the various defendants during the continuing course of that case, ” Harrington v. Wilson, No. 05-cv-01858-EWN-MJW, 2006 WL 2724094, at *9 (D. Colo. Sept. 21, 2006), and asks this court to reevaluate issues and evidence presented and addressed in her domestic proceedings in Adams County District Court. She asserts that she “brought this action against defendants because of what they did to manipulate the Adams County Court into making such a shockingly unjust ruling.” [#95 at 2] (emphases omitted). See also [#89 at 5 (“To be clear, the Complaint alleges that Defendants intentionally engaged in conduct that caused the Adams County District Court to deprive Plaintiff Trujillo of her right to familial association - - [sic] it is not a challenge to the Adams County District Court itself.”)]. In other words, Ms. Trujillo attributes the state court's incorrect rulings to Defendants' statements and conduct. But these arguments merely emphasize that her claims are barred. See, e.g., Wright v. Oklahoma County, No. CIV-20-00346-JD, 2020 WL 8335672, at *7 (W.D. Okla. Aug. 31, 2020) (finding claims inextricably intertwined with state court domestic-relations orders because plaintiff alleged that the defendants' conduct “led to” the state court orders); McDonald v. Arapahoe County, No. 18-1070, 2018 WL 6242214, at *3 (10th Cir. Nov. 28, 2018) (unpublished) (finding a due process claim barred by Rooker-Feldman because it was premised “almost entirely on allegations concerning the state court proceedings and [plaintiff] would not be able to prove his claim without reference to those proceedings”).
To the extent Ms. Trujillo contends that her claims do not challenge the child-custody orders but rather the EPD Defendants' allegedly unconstitutional enforcement of or complicity with the same, these claims too are barred by the Rooker-Feldman doctrine. In Mann, the plaintiff sought “monetary damages against a variety of government actors and private individuals for the alleged violations of her constitutional rights occasioned by their complicity with the probate court's orders.” 477 F.3d at 1147. The United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) found that these claims also were barred by the Rooker-Feldman doctrine because the claims “assert injuries based on the probate court judgments and, for her to prevail, would require the district court to review and reject those judgments.” Id. The same is true here-that Ms. Trujillo blames Defendants, rather than the state court, for the decisions ultimately rendered does not change the fact that her claims turn on a finding that the state court reached the wrong conclusions.
Consideration of any such errors is not properly before this court. See Tal, 453 F.3d at 1256 & n.11 (“In Rooker, the Court specifically stated that errors in state cases should be reviewed and settled through the state appellate process.”) (emphasis added) (citing Rooker, 263 U.S. at 415); see also Rooker, 263 U.S. at 415 (“If the constitutional questions stated . . . actually arose in the cause, it was the province and duty of the state courts to decide them. . . . If the decision was wrong, that did not make the judgment void, but merely left it open to reversal or modification in an appropriate and timely [state court] appellate proceeding.”). If Ms. Trujillo had issues with the validity or propriety of the state court orders, she should have appealed through the state court system and ultimately to the United States Supreme Court. Ms. Trujillo cannot circumvent this process by attacking the state court orders under the guise of constitutional claims against related actors in this instant suit. See Alfaro, 766 Fed.Appx. at 660-61 (affirming dismissal of complaint for lack of subject matter jurisdiction under the domestic-relations exception and Rooker-Feldman and noting with approval the lower court's rejection of argument that plaintiff “was not directly litigating [a] prior . . . child-custody decree, but instead, was pursuing independent federal and state constitutional and statutory claims that merely happen to involve [the defendant's] conduct during those proceedings”).
The Colorado Court of Appeals affirmed the Adams County District Court's April 2019 order revoking Ms. Trujillo's parental rights until certain conditions were satisfied. See In re Marriage of Sisneros, 2019 COA 998 (Colo. Ct. App. June 25, 2020) (unpublished) [#80-1]. See also Hodgson v. Farmington City, 675 Fed.Appx. 838, 841 (10th Cir. 2017) (federal district court may consider another court's publicly-filed records “concerning matters that bear directly upon the disposition of the case at hand” without converting a motion to dismiss to one for summary judgment).
Fraud on the Court.
Similarly, Claim III is premised on the assertion that the child-custody orders relied on fraudulent information presented by Ms. Gomolson, whose conduct “caused the court to improperly order Plaintiff's loss of physical custody of her children.” [#76 at ¶ 78]. In order for Ms. Trujillo to prevail, the court would necessarily have to find the child-custody orders invalid. See, e.g., United States v. Buck, 281 F.3d 1336, 1341 (10th Cir. 2002) (describing fraud on the court doctrine as providing equitable remedy which “invoke[s] the inherent power of a court to set aside its judgment”).
Claim III is therefore inextricably intertwined with the Adams County District Court's child-custody orders. See Mayotte v. U.S. Bank Nat'l Assoc. for Structured Asset Inv. Loan Trust Mortg., 880 F.3d 1169, 1174 (10th Cir. 2018); Fikrou v. Montgomery Cty. Office of Child Support Enf't Div., No. 215-CV-01297-GMN-NJK, 2015 WL 6539767, at *3 (D. Nev. Oct. 28, 2015) (finding claims against state child support enforcement agency defendants based upon allegation that child support orders were entered upon “fraud on the court” inextricably intertwined with state court decisions regarding child support and the enforcement thereof). Accordingly, this court finds that Ms. Trujillo's claim for fraud on the court is barred by the Rooker-Feldman doctrine. See Farris v. Burton, 686 Fed.Appx. 590, 592 (10th Cir. 2017) (applying Rooker-Feldman where the plaintiff's claims would require “a federal court . . . to review the [ ] state court proceedings to determine if the decision . . . was reached as a result of fraud or from a proper assessment of the claims”); Richardson v. Title IV-D Agency, No. 19-cv-01984-RM-NRN, 2020 WL 1695545, at *4 (D. Colo. Jan. 16, 2020) (recommending dismissal for lack of subject matter jurisdiction over plaintiff's fraud claim premised on state court order and judgment concerning child support payments as barred by the Rooker-Feldman doctrine), recommendation adopted, 2020 WL 948711 (D. Colo. Feb. 27, 2020), aff'd, 842 Fed.Appx. 190 (10th Cir. 2021).
Thus, it is clear that Ms. Trujillo's claims seek to have this court review the state court proceedings for a violation of her federal and state rights, and rely on the general premise that the child-custody orders were obtained illegally, unlawfully, and through fraud. Such a review is prohibited by the Rooker-Feldman doctrine, Jensen, 603 F.3d at 1193, and Ms. Trujillo's claims are therefore barred.
B. Collateral Attacks on State Court Judgments
Ms. Gomolson further argues that this court lacks subject matter jurisdiction over Claim III because there is no fraud on the court cause of action in federal court for a state court judgment. [#90 at 13 (quoting Conry v. Barker, No. 14-cv-02672-CMA-KLM, 2015 WL 5636405 (D. Colo. Aug. 11, 2015))]. I respectfully agree. Ms. Trujillo is seeking a remedy in the wrong court.
The fraud on the court doctrine provides for an equitable remedy which “invoke[s] the inherent power of a court to set aside its judgment.” Buck, 281 F.3d at 1341 (emphasis added); Conry, 2015 WL 5636405, at *10 (“[F]raud on the court is an equitable remedy allowing a federal court to grant relief from a federal judgment, not a state judgment.”). As such, the proper relief for fraud on the court is relief from judgment, see Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991), and “[o]nly the court that had jurisdiction over the original judgment . . . can provide relief from that judgment through an independent action, ” Atkins v. Heavy Petroleum Partners, LLC, 635 Fed.Appx. 483, 489 (10th Cir. 2015). See also Crosby v. Mills, 413 F.2d 1273, 1275-76 (10th Cir. 1969) (holding that jurisdiction for a fraud on the court claim is ancillary to the jurisdiction for the original claim). This court did not have jurisdiction over the child-custody case in Adams County District Court, and does not now have jurisdiction over a fraud on the court claim attacking the same.
Mr. Keller's argument that he is merely seeking “damages for the fraud on the Court” [#95 at 10], rather than relief from the state court judgments, does not change this conclusion. As discussed above, Mr. Keller identifies no injury personal to him associated with Claim III, and it is undisputed that he was not a litigant before the court. See [#76 at ¶¶ 74-80]. Though Defendant Gomolson does not raise standing in her Motion to Dismiss [#90], “whenever standing is unclear, we must consider it sua sponte to ensure there is an Article III case or controversy before us.” See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1126 (10th Cir. 2013), aff'd sub nom. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014). Standing requires a plaintiff to show a concrete, particularized, and actual or imminent injury; fairly traceable to the challenged action; and redressable by a favorable ruling. See Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013). Except in limited circumstances not present here, a litigant must assert his own legal rights and interests, and cannot rest his claim on a third-party's rights and interest. See Kowalski v. Tesmer, 543 U.S. 125, 129, 125 S.Ct. 564, 567, 160 L.Ed.2d 519 (2004). In Claim III, Ms. Trujillo alleges that “Defendant Gomolson's fraud upon the court actually deceived the court” and “[a]s a direct, immediate and proximate result of Defendant Gomolson's conduct Plaintiff's loss of her familial association with Children.” [#76 at ¶¶ 79-80]. However, Mr. Keller pleads no concrete or particularized injury to him fairly traceable to Defendant Gomolson's alleged fraud on the court. See [id. at ¶¶ 74-80]. It is undisputed that he was not a party to any Adams County District Court proceedings or orders. See generally [id.]. Mr. Keller alleges no relationship with Ms. Trujillo's son that was injured by Defendant Gomolson's alleged fraud on the court. [Id.]. He also repudiates any relationship with Ms. Trujillo's daughter, see [id. at ¶ 48(e)], that might have been injured. Thus, this court concludes that Mr. Keller lacks standing to assert a claim for fraud on the court against Defendant Gomolson. Cf. Kem Mfg. Corp. v. Wilder, 817 F.2d 1517, 1521 (11th Cir. 1987) (holding that “barring extraordinary circumstances (and we find none here), a nonparty only has standing to raise a challenge of fraud on the court if the nonparty's interests are directly affected by the final judgment”) (emphasis added).
In any case, as with actions for equitable relief, “federal courts will not entertain a collateral attack on a state judgment on the basis of ‘fraud on the court' in an action for damages.” Buchanan v. Midland Funding LLC, No. 15-cv-00388-PLM-PJG, 2017 WL 4158935, at *6 (W.D. Mich. Aug. 28, 2017); LaMie v. Wright, Case No. 1:12-cv-1299, 2014 WL 1686145, at *14 (W.D. Mich. April 29, 2014) (citing Robinson v. Volkswagenwerk AG, 56 F.3d 1268, 1274 (10th Cir. 1995); Chewning v. Ford Motor Co., 35 F.Supp.2d 487, 489 (D.S.C. 1998)). Because Claim III does not assert a fraud on the court claim premised on fraud perpetuated in federal court, this court finds subject matter jurisdiction over the claim lacking. I therefore respectfully recommend that Claim III be dismissed in its entirety.
In sum, while I find that only Ms. Trujillo's claims are barred by Rooker-Feldman and the domestic-relations exception, I nevertheless conclude that this court lacks subject matter jurisdiction over Claim III in its entirety as asserted by either Ms. Trujillo or Mr. Keller. Accordingly, I respectfully RECOMMEND that the EPD and Gomolson Motions to Dismiss be GRANTED, and Claims I, II, and III be dismissed without prejudice for lack of subject matter jurisdiction.
Because dismissals based upon the foregoing doctrines are jurisdictional, they should be entered without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1214 (10th Cir. 2006) (“A longstanding line of cases from this circuit holds that where the district court dismisses an action for lack of jurisdiction, as it did here, the dismissal must be without prejudice.”); Wideman v. Colorado, 242 Fed.Appx. 611, 614 (10th Cir. 2007) (remanding to district court to modify dismissal for lack of subject matter jurisdiction premised on the Rooker-Feldman doctrine to be without prejudice).
Given this court's conclusion that it lacks subject matter jurisdiction over Claims I, II, and III, this court limits its analysis here to the sufficiency of the Second Amended Complaint as pled against the Defendants with respect to only Claims IV and V. See Colo. Outfitters Ass'n v. Hickenlooper, 823 F.3d 537, 543 (10th Cir. 2016) (“A federal court can't ‘assume' standing in order to proceed to the merits of the underlying claim, regardless of the claim's significance.”); Cunningham v. BHP Petroleum Great Britain PLC, 427 F.3d 1238, 1245 (10th Cir. 2005) (holding that once a federal court determines that it is without subject matter jurisdiction, it must not proceed to consider any other issue).
Given that the foregoing jurisdictional issues do not bar Claims IV and V brought by Mr. Keller, I turn now to consider the merits of the Defendants' non-jurisdictional arguments. Claim IV is asserted against only Defendants Hoysick, Gomolson, and Sisneros, while Claim V is asserted against all Defendants. Defendants Hoysick and Gomolson both argue in separate Motions to Dismiss that Claim V fails because they are not state actors; (b) any cognizable claim asserted in Claim IV is barred by the statute of limitations; and (c) Mr. Keller fails to plead facts sufficient to support various elements of his defamation (Claim IV) or § 1983 (Claim V) claims against them. See [#82; #90]. In seeking dismissal of Claim V, the EPD and Weld County Defendants assert both statute of limitations and qualified and/or absolute prosecutorial immunity defenses. Finally, the EPD Defendants also seek dismissal of EPD because it is not a suable entity, and dismissal of any official capacity claims against Chief Stewart, Deputy Chief Mathis, and Officers Newman and Muzzipapa because the Town of Erie is not a defendant in this action. [#80 at 9-10]. Before turning to Claims IV and V specifically, this court addresses certain arguments that apply to multiple counts.
A. Municipal Liability and Official Capacity Claims
Plaintiff Keller offers no counterargument in response to the EPD Defendants' arguments for dismissal of (a) the Erie Police Department as a non-suable entity under § 1983; or (b) all official capacity claims asserted against the EPD Defendants for failure to name the Town of Erie as a defendant. [#89]. I nevertheless consider the issues in turn.
Erie Police Department is not a suable entity.
Municipalities are suable entities under § 1983 but governmental sub-units, such as police departments, are not separate suable entities because they lack legal identities apart from the municipality. See Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985) (“The ‘City of Denver Police Department' is not a separate suable entity.”); see also Moore v. Diggins, 633 Fed.Appx. 672, 677 (10th Cir. 2015) (a sheriff's department is not a suable entity under § 1983). Thus, the Erie Police Department is a non-suable entity under § 1983. Given that all three claims asserted against the Erie Police Department are brought under § 1983, the Second Amended Complaint does not state any claim for relief against the Erie Police Department. Hinton v. Dennis, 362 Fed.Appx. 904, 907 (10th Cir. 2010). Accordingly, I respectfully RECOMMEND that Claim V be dismissed against the Erie Police Department, and insofar as the court has subject matter jurisdiction over Claims I and II, such causes of action be dismissed against the Erie Police Department.
Official Capacity Claims.
The EPD Defendants argue for the dismissal of all official capacity claims against Chief Stewart, Deputy Chief Mathis, and Officers Newman and Muzzipapa, in part, because the Town of Erie is not a defendant in this action. [#80 at 10]. In so doing, the EPD Defendants rely on the well-settled principle that claims against individuals in their official capacities are merely “‘another way of pleading an action against an entity of which an officer is an agent, '” [id. (quoting Monell v. Dept. of Social Servs., 436 U.S. 658, 690 n.55 (1978))]; the non-suable status of the Erie Police Department; and the Plaintiffs' failure to name the Town of Erie as a defendant. Thus, a suit against Defendants Stewart, Mathis, Newman, and Muzzipapa in their official capacities is essentially a suit against the Town of Erie. See Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985).
These EPD Defendants offer no authority to support a requirement that a § 1983 plaintiff name both the police officers in their official capacities and the municipality itself. Indeed, this is not the law. “A § 1983 claim is properly plead against a municipality either by naming the municipality itself or by naming a municipal official in his or her official capacity. Naming either is sufficient.” Davis v. Clifford, No. 13-cv-1642-WJM-KLM, 2014 WL 901608, at *3 (D. Colo. Mar. 7, 2014) (emphasis added) (internal quotation marks and citations omitted). See also Graham, 473 U.S. at 166; Brandon v. Holt, 469 U.S. 464 (1985) (asserting an official capacity suit against a city department's official is sufficient to name the municipality itself) (citing Monell, 436 U.S. 658). Accordingly, I decline to recommend dismissal on this basis.
Insofar as Mr. Keller asserts that Claim IV applies to “all Defendants” and his belief that a paragraph to this effect “was left off . . . in the [Second] Amended Complaint when things got shifted, ” [#89 at 7], this court declines to assume-contrary to the face of the Second Amended Complaint-that Claim IV applies to all Defendants. See [#76 at 33]. And Mr. Keller cannot amend his pleading through his Response to the instant Motions to Dismiss. Abdulina v. Eberl's Temp. Servs., Inc., 79 F.Supp.3d 1201, 1206 (D. Colo. 2015) (citing Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995)).
Claim IV is asserted by Mr. Keller against Defendants Sisneros, Gomolson, and Hoysick. [#76 at 33]. Defendants Gomolson and Hoysick both move to dismiss Claim IV pursuant to Rule 12(b)(6) for failure to state a cognizable claim. Both Defendants assert, inter alia, that any cognizable defamation action asserted in Claim IV is barred by the applicable statute of limitations. Mr. Hoysick also argues that 28 U.S.C. § 4101 does not create a private cause of action. [#82 at 16].
Defamation under 28 U.S.C. § 4101.
As a threshold matter, this court agrees with Defendant Hoysick's argument that the statute under which Mr. Keller asserts Claim IV does not create a private cause of action for a domestic defamation claim. See 28 U.S.C. § 4101. Section 4101 merely defines, inter alia, the term “defamation” as that term is used in the statute setting forth the factors courts must consider before recognizing defamation judgments rendered by a tribunal of a foreign country. The Second Amended Complaint thus fails to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 4101. Accordingly, insofar as Claim IV asserts a cause of action under § 4101, this court respectfully recommends that it be dismissed for failure to state a legally cognizable claim. See Flynn v. Flores, No. 21-cv-00193-JHR, 2021 WL 826553, at *1 (D.N.M. Mar. 4, 2021) (dismissing plaintiff's § 4101 claim for failure to state a claim upon which relief can be granted).
Defamation under Colorado law.
Affording Mr. Keller's pleading a liberal construction, cf. supra note 1, he appears to assert a claim for defamation, albeit under the wrong legal theory. Both Defendant Gomolson and Defendant Hoysick argue that Claim IV-even if construed as a defamation claim under Colorado law-is time-barred and inadequately pled. [#82 at 17; #90 at 11]. Though the statute of limitations is considered an affirmative defense, a complaint may be dismissed on statute of limitations grounds “if it is apparent from the face of the complaint that the claim is time-barred.” Harp v. Dep't of Human Servs., Colo. Mental Health Inst., 932 F.Supp.2d 1217, 1236 (D. Colo. 2013). Dismissal of a claim as time-barred is treated as a dismissal for failure to state a claim. Jackson v. Standifird, 463 Fed.Appx. 736, 737 (10th Cir. 2012).
In Colorado, the statute of limitations applicable to defamation claims is one year. Colo. Rev. Stat. § 13-80-103(1)(a); see also Burke v. Greene, 963 P.2d 1119, 1121 (Colo.App. 1998). A cause of action for injury to reputation, such as defamation, “shall be considered to accrue on the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence.” C.R.S. § 13-80-108(1); see also Burke, 963 P.2d at 1121. A defamation claim accrues when the allegedly defamatory statements are published. Conrad v. Ed. Resources Inst., 652 F.Supp.2d 1172, 1186 (D. Colo. 2009) (applying Colorado law).
Here, the last hearing at which Defendant Gomolson could have plausibly made false, defamatory statements occurred in April 2019. [#76 at ¶¶ 48, 49]. Defendant Hoysick's allegedly false statements about Mr. Keller occurred even earlier, when they were published in Defendant Hoysick's March 2019 CFI Report. [Id. at ¶ 48]. These allegedly defamatory statements accrued upon publication in April 2019, at the latest. Because this action was initiated on September 22, 2020, the statute of limitations therefore precludes Mr. Keller's claim unless he can show a factual basis for tolling.
Mr. Hoysick argues that, insofar as Mr. Keller alleges a defamatory statement made by Mr. Hoysick as a testimonial witness in court, any such statement would not be actionable because the testimony of a witness at a hearing cannot form the basis for a defamation claim. [#82 at 17 n.4 (citing Hoffler v. Colo. Dep't of Corr., 7 P.3d 989, 900 (Colo.App. 1999))]. While this court respectfully agrees, I note that-a contrary conclusion notwithstanding-the statute of limitations would apply equally to Mr. Hoysick's testimony given that it occurred prior to September 22, 2019.
Given that Mr. Keller fails to respond to the timeliness arguments raised by either Defendant Gomolson or Defendant Hoysick, he falls far short of meeting his burden to salvage his claim. [#89, #95]. In effect, he agrees that his defamation claim is barred. Accordingly, this court respectfully RECOMMENDS that the Gomolson Motion to Dismiss and Hoysick Motion to Dismiss be GRANTED, and Claim IV against Defendants Gomolson and Hoysick be dismissed without prejudice for failure to state a claim.
C. Claim V - Section 1983
In seeking dismissal of Claim V, the EPD and Weld County Defendants assert both statute of limitations and qualified and/or absolute immunity defenses, while Defendants Hoysick and Gomolson argue that Claim V fails because they are not state actors and facts showing the elements of any due process claim brought by Mr. Keller are insufficiently pled. I first consider whether the EPD and Weld County Defendants' statute of limitations defenses warrant dismissal of Claim V.
1. Statute of Limitations
Both the EPD and Weld County Defendants assert that Claim V is barred by the statute of limitations. [#80 at 8-9; #81 at 14-15]. For the reasons that follow, this court respectfully agrees that Claim V as asserted against these defendants is time-barred and, accordingly, I do not reach the merits of the qualified and/or absolute immunity defenses raised by the EPD and Weld County Defendants, respectively. See Eyring v. Fondaco, 667 Fed.Appx. 983, 983-84 (10th Cir. 2016) (affirming district court's dismissal of claims on grounds that statute of limitations had run and, in the alternative, that such claims were barred by immunity defenses raised by defendants).
Legal Standard.
In § 1983 actions, courts apply the forum state's statute of limitations for personal-injury claims, Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007), and generally apply the forum state's tolling rules, id. at 394, 127 S.Ct. 1091. Here, Colorado is the forum state and provides a two-year statute of limitations for personal-injury claims. Colo. Rev. Stat. § 13-80-102. With respect to accrual of § 1983 claims, however, courts look to federal law. See Wallace, 549 U.S. at 388, 127 S.Ct. 1091. Under federal law, “[a] civil rights action accrues when facts that would support a cause of action are or should be apparent.” Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995) (internal quotation marks omitted). Further, once a defendant satisfies his initial burden to show that a claim is untimely, the burden shifts to the plaintiff to establish a factual basis for tolling the statute of limitations. See Escobar v. Reid, 668 F.Supp.2d 1260, 1287 (D. Colo. 2009) (citing Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980) (holding that, on motions to dismiss asserting the statute of limitations affirmative defense, “when the dates given in the complaint make clear that the right sued upon has been extinguished, the plaintiff has the burden of establishing a factual basis for tolling the statute”)); Canfield v. Douglas County, 619 Fed.Appx. 774, 777- 79 (10th Cir. 2015).
Application.
Plaintiffs filed the original Complaint in this action on September 22, 2020. [#1]. Therefore, pursuant to the two-year statute of limitations set forth in Colo. Rev. Stat. § 13-80-102, any acts occurring prior to September 22, 2018 are time barred and must be dismissed by the court unless Mr. Keller establishes a factual basis for tolling the statute.
Here, Mr. Keller does not allege any discrete unlawful acts by the EPD or Weld County Defendants that occurred during the two years before Plaintiffs filed this action. According to the Second Amended Complaint, Ms. Trujillo's children were removed from her custody on May 15, 2018 due, in relevant part, to misconduct by the EPD and Weld County Defendants between May 8 and May 15, 2018. The last affirmative act taken by the EPD Defendants alleged in the Second Amended Complaint occurred sometime prior to a May 24, 2018 custody hearing, when the EPD “and/or Defendant Mathis and/or Defendant Newman intentionally made [an incident report] unavailable to Plaintiff.” [#76 at ¶ 44]. The last affirmative act alleged to have been made by the Weld County Defendants was on or about May 15, 2018, when D.A. Wrenn advised an EPD police officer to direct Mr. Sisneros to pick his son up from school. [Id. at ¶ 41].
Even if Claim V pleads a viable § 1983 claim, Mr. Keller's claims against the EPD and Weld County Defendants accrued in May 2018, when-after the Adams County District Court was presented with false allegations that Mr. Keller was a registered sex offender living with and/or dating Ms. Trujillo-Ms. Trujillo's children were ordered removed from her custody, as Mr. Keller knew or should have known at that point that his rights had been violated. Because Plaintiffs did not file this action until September 22, 2020, the statute of limitations bars Mr. Keller's federal civil rights claims against the EPD and Weld County Defendants unless he can establish a factual basis for tolling his claims.
Equitable Tolling.
State law governs issues regarding tolling of § 1983 claims. See Johnson v. Garrison, 805 Fed.Appx. 589, 593 (10th Cir. 2020). While equitable tolling may save a plaintiff's claims from a statute of limitations defense, courts applying the doctrine under Colorado law rarely find such tolling warranted. See, e.g., Escobar, 668 F. Supp.2d at 1272 (citing Noel v. Hoover, 12 P.3d 328, 330 (Colo.App. 2000) (noting that equitable tolling requires wrongful conduct by the defendant or “truly exceptional circumstances” that prevent a plaintiff from filing a timely claim); Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094 (Colo. 1996)). I find that Mr. Keller has failed to plausibly assert any basis for tolling, and I respectfully agree with Defendants that this case does not present the rare or “exceptional circumstances” in which equitable tolling should be applied.
First, Mr. Keller argues that his claims did not accrue until September 2020, when he learned that “on May 15, 2018, the Weld Defendant's knowingly conspired and intentionally directed the Erie Defendants to not serve the Order, yet, remove the children immediately on the allegations that Plaintiff Keller was a Convicted Sex Offender.” [#89 at 9]. I respectfully disagree. Again, for the reasons set forth above, it is not clear that he has any relevant injury associated with the removal of Ms. Trujillo's children from her custody based on Mr. Keller's presence in her home. Insofar as Mr. Keller had standing, his injury would have been apparent when the children were removed in May 2018. Similarly, insofar as Mr. Keller alleges injury for being “seen as the worst kind of criminal, ” see, e.g., [#76 at ¶¶ 101-02], any such rights violations became evident when the child custody proceedings were initiated in May 2018 on the allegedly false premise that Mr. Keller was a convicted sex offender. The cause of action accrued at that time even if “the full extent of [his] injury [was] not then known or predictable.” Varnell v. Dora Consolidated Sch. Dist., 756 F.3d 1208, 1216 (10th Cir. 2014) (internal quotation marks omitted). Cf. [#89 at 9 (“[I]t is to Plaintiff Keller's understanding the time does not start tolling [sic] until all the actions and parties are known of.”)].
Second, Mr. Keller argues that his claims should be equitably tolled “because the conspiring actions of the Weld Defendants and Erie Defendants were not known of until September 2020, ” and they “knowingly and in concert concealed their intentional acts to do harm to Plaintiff Keller.” [#89 at 11-12]. See Dean Witter Reynolds, Inc., 911 P.2d at 1096 (equitable tolling is appropriate “where the defendant's wrongful conduct prevented the plaintiff from asserting his or her claims in a timely manner”). But the only allegations of the EPD and Weld County Defendants' wrongful conduct set forth in the Second Amended Complaint occurred in May 2018. Indeed, in his Response, Mr. Keller relies on various allegations of wrongful conduct by EPD and Weld County actors-all of which occurred in May 2018. See [#89 at 10-11]. The only references to later dates therein relate to when Mr. Keller claims to have learned of the foregoing conduct. See, e.g., [id. at 9 (“Plaintiff Keller . . . first learned in September 2020 that on May 15, 2018, the Weld Defendant's knowingly conspired . . . .”); id. at 10 (“It was only found out in October 2020 . . . that the front desk of the EPD were to take the May 2018 Subpoenas left for the Erie Defendants.”); id. at 11 (“If it was known of the communication of the Weld Defendants and Erie Defendants prior to September 2020, Plaintiff Keller challenges these actions would have been brought to light in 2018.”); id. (“[T]he conspiring actions . . . were not known of until September 2020.”)].
Absent from the pleading-or even the Response-are any allegations that these defendants engaged in wrongful conduct between May 2018 and the filing of the original Complaint in September 2020-let alone allegations showing such conduct prevented Plaintiffs from timely asserting their claims. See generally [#76; #89]. Indeed, even the new allegations set forth in Mr. Keller's Response are bare, vague, and conclusory. See, e.g., [#89 at 11 (“[T]he conspiring actions . . . were not known of until September 2020.”)]. And because “[t]he principle underlying equitable tolling [for wrongful concealment] is that a person should not be permitted to benefit from his or her own wrongdoing, ” Mr. Keller's failure to file his § 1983 claim against the defendants within the limitations period cannot be saved under the doctrine of equitable tolling. See Conrad, 652 F.Supp.2d at 1184 (quoting Dean Witter Reynolds, Inc., 911 P.2d at 1096-97).
Mr. Keller thus fails to carry his burden. No wrongful acts are pled against the EPD or Weld County Defendants beyond May 24, 2018. See generally [#76]. This action was not filed until September 22, 2020. See [#1]. The two-year statute of limitations applicable to § 1983 claims therefore bars Claim V as asserted against the EPD and Weld County Defendants.
2. Defendant Gomolson and Defendant Hoysick
In seeking dismissal of Claim V, Defendants Gomolson and Hoysick argue in their respective Motions to Dismiss that Mr. Keller fails to state a cognizable claim against them because § 1983 liability attaches only to state action-and they are not state actors. See [#82; #90]. Plaintiffs counter that Defendant Gomolson is a state actor because she engaged in concerted action with state actors; Mr. Hoysick is a state actor because he was appointed by a state court; and both Defendants Gomolson and Hoysick are state actors because the two were engaged in a “symbiotic relationship.” See [#89; #95]. I consider whether Plaintiffs adequately allege facts showing that Defendants Gomolson and Hoysick are state actors on their own before turning to whether, in the aggregate, the allegations against these two defendants demonstrate state action.
This court notes Mr. Hoysick's assertion in Reply that the only argument raised in his Motion to Dismiss to which Plaintiffs respond is his argument that he is not a state actor for purposes of § 1983 liability. See [#93 at 1-2].
State Action.
To succeed on a § 1983 claim at the pleading stage, the Second Amended Complaint must plead that the alleged deprivation was committed by a person acting under color of state law. See, e.g., Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 930, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). There are four approaches to determining whether state action is present: (1) the public function test, (2) the nexus test, (3) symbiotic or entwinement test, and (4) the joint action test. Johnson, 293 F.3d at 1202.
Under the public function test, “[i]f the state delegates to a private party a function traditionally exclusively reserved to the State, then the party is necessarily a state actor.” Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1456 (10th Cir. 1995). Under the nexus test, “there is a sufficiently close nexus” between the government and the challenged conduct if the conduct “may be fairly treated as that of the state itself.” Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). Under the symbiotic relationship test, a private actor is deemed to be a state actor where the state “has so far insinuated itself into a position of interdependence with a private party that it must be recognized as a joint participant in the challenged activity.” Gallagher, 49 F.3d at 1447, 1451. Finally, under the joint action test, “courts examine whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights.” Id. at 1453.
Defendant Gomolson is not a state actor.
According to the Second Amended Complaint, “Defendant Kate Gomolson . . . is and was at all times relevant a private citizen and a private attorney licensed by the State of Colorado.” [#76 at ¶ 17]. Plaintiffs nevertheless argue that Defendant Gomolson is a state actor for § 1983 purposes because she “conspired” and “acted in concert with” state actors. [#95 at 4-8]. Specifically, Plaintiffs argue that they have alleged both (a) concerted action between Ms. Gomolson and the other Defendants in this action; and (b) a “symbiotic relationship” between Defendants Gomolson and Hoysick, the latter of whom they assert is a state actor.
But as Ms. Gomolson argues in her Motion to Dismiss and Reply, the Second Amended Complaint fails to set forth any non-conclusory allegations of concerted action between Ms. Gomolson and any state actor. Indeed, Plaintiffs cite only to allegations of- at best-parallel conduct between Ms. Gomolson and other actors, see, e.g., [#95 at 6 (arguing that “allegation[s] that ‘Defendant Gomolson filed her motion to restrict parenting time' and shortly thereafter, ‘Defendant Newman arrived at Plaintiff's residence'” are “evidence of this conspiracy”); id. (arguing that allegations of “significant interaction between Defendant Sisneros and Defendants Newman, [EPD], Carrasco, and Mathis (all state actors)” and “Defendant Gomolson's subsequent prompt pleading to the Adams County District Court certainly give rise to the inference that [she], as Defendant Sisneros' attorney, was significantly involved, either directly or indirectly, in conspiring with [the state actors]”)], before conceding in their Response that, “at this point, Plaintiffs are not aware of what Defendant Gomolson exactly did, and thus cannot allege specific facts regarding her [sic] given the good faith basis standard of pleading.” [#95 at 6]. Given the absence of any non-conclusory allegations of concerted action between Ms. Gomolson and state actors, I find that the Second Amended Complaint fails to allege facts satisfying the “joint action” test for state action. See Twombly, 550 U.S. at 556-57 (to show concerted action, allegations of parallel conduct must be “placed in a context that raises a suggestion of a preceding agreement, not merely parallel conduct that could just as well be independent action”).
Defendant Hoysick is not a state actor.
Mr. Hoysick relies on Anderson v. Glissman, 577 F.Supp. 1506 (D. Colo. 1984), to argue that neither his court-appointed status nor his testimony as a witness in the state court proceedings render his actions fairly attributable to the state. [#82 at 9-12 (citing Anderson, 577 F.Supp. at 1508)]. In Response, Plaintiffs argue that the facts of this case and Anderson are distinguishable. [#89 at 22-24].
Plaintiffs first point to Mr. Hoysick's appointment as a CFI, rather than a court-appointed psychiatrist like the defendant in Anderson. [#89 at 22]. This court agrees with Mr. Hoysick that-insofar as Plaintiffs argue that Mr. Hoysick was a state actor because he was appointed by the court to assess who should be awarded custody of the children; subsequently conducted an investigation and made recommendations to the court regarding the same; prepared a CFI Report and testified at a hearing on the CFI Report; and did not need to be a mental health professional to serve as a CFI-a similar argument was considered and rejected by the Anderson court. [#93 at 5]; Anderson, 577 F.Supp. at 507-08 (defendant appointed by state court in domestic proceeding completed an evaluation, prepared a report, and testified before the court to assist in determination of who should be awarded custody of minor children was not a state actor for purposes of § 1983 claim).
Mr. Hoysick was appointed by the Adams County District Court to recommend who should have custody of Ms. Trujillo and Mr. Sisneros's children. While Mr. Hoysick thus acted under the authority of the state court, “the mere fact that a private party's actions are performed pursuant to a court appointment does not make those actions fairly attributable to the state.” Anderson, 577 F.Supp. at 507-08. And Mr. Keller fails to point to any allegations in the Second Amended Complaint showing concerted action between Mr. Hoysick and any state actor. See Id. (“Since the plaintiff's complaint does not set forth any facts supporting a conspiracy between [state actor] and the defendant, it fails to state a claim for relief under section 1983.”).
The alleged relationship does not make them state actors.
Plaintiffs argue that their allegations support the inference that “Defendant Gomolson was in a symbiotic relationship with Defendant Hoysick who is a state actor thereby making her a state actor[.]” [#95 at 8]. Conversely, Plaintiffs argue that Mr. Hoysick is a state actor because he was influenced by Ms. Gomolson, who they characterize as an “officer of the court.” [#89 at 24].
But the only allegation to which Plaintiffs cite to argue that Mr. Hoysick's CFI Report and/or testimony was influenced by “an officer of the court” is an allegation that he shared a glance with Ms. Gomolson during a hearing on his CFI Report. [Id.]. As set forth above, Ms. Gomolson was not a state actor but instead a private attorney advocating for her client. Because Ms. Gomolson was not a state actor by virtue of her status as an “officer of the court, ” see Barnard v. Young, 720 F.2d 1188, 1189 (10th Cir. 1983) (a private attorney is not a state actor under § 1983 even though he is an officer of the court), it necessarily follows that any alleged undue influence she exerted over Mr. Hoysick as an “officer of the court” could not render Mr. Hoysick a state actor.
The converse is also true-because Mr. Hoysick is not a state actor on his own, any “symbiotic relationship” between he and Ms. Gomolson could not render Ms. Gomolson a state actor. Moreover, the Second Amended Complaint specifically states that, “at the time of this Complaint there is no evidence that Defendant Hoysick and Defendant Gomolson were colluding.” [#76 at ¶ 48(a)]. Without more, bare allegations of the “appearance of collusion” [id.] between two private actors simply cannot constitute state action.
Thus, I find that the allegations set forth in the Second Amended Complaint fail to show the requisite “state action” by Defendants Gomolson or Hoysick necessary for § 1983 liability attach to their alleged misconduct. Because the Second Amended Complaint fails to adequately allege that Defendants Gomolson and Hoysick were state actors, Claim V fails to state a cognizable § 1983 claim against these defendants. Accordingly, I respectfully RECOMMEND that the Gomolson Motion to Dismiss and Hoysick Motion to Dismiss be GRANTED, and Claim V as asserted against Defendants Gomolson and Hoysick be dismissed for failure to state a claim.
CONCLUSION
For the reasons set forth herein, this court respectfully RECOMMENDS that:
(1) EPD Defendants' Motion to Dismiss [#80] be GRANTED;
(2) Defendant Gomolson's Motion to Dismiss [#90] be GRANTED;
(3) Claims I, II, and III asserted in Plaintiffs' Second Amended Complaint [#76] be DISMISSED without prejudice for lack of subject matter jurisdiction;
(4) Defendant Hoysick's Motion to Dismiss [#82] be GRANTED;
(5) Weld County Defendants' Motion to Dismiss [#81] be GRANTED;
(6) Claim IV as asserted against Defendants Gomolson and Hoysick be DISMISSED; and
(7) Claim V as asserted against the EPD Defendants, Weld County Defendants, Defendant Gomolson, and Defendant Hoysick be DISMISSED.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).