Opinion
Civil Action 1:22-cv-01402-WJM-SKC
03-06-2023
DANNY ZIPRIS, Plaintiff, v. HON. ANNE M. OLLADA, and HON. FREDERICK T. MARTINEZ, Defendants.
RECOMMENDATION RE: DEFENDANTS' MOTION TO DISMISS [DKT. 46]
S. KATO CREWS, MAGISTRATE JUDGE
In February 2020, J.M.V. (not a party) stole $1,189 from Plaintiff Danny Zipris and, according to the allegations in the Amended Complaint, transferred most of the money to her bank account at BBVA USA Inc. (“Bank”). [Dkt. 38 at p.2.] J.M.V. was ultimately arrested and charged with theft. [Id. at p.3.] Plaintiff subsequently took police and court records to the Bank as evidence of the stolen funds and demanded the Bank return his money.[Id. at p.4.] When it refused, Plaintiff sued the Bank in small claims court in Arapahoe County for civil theft. [Dkt. 46-5.]
According to the findings of the Arapahoe County Court, Plaintiff never obtained nor presented the Bank with a court order or writ to seize funds from J.M.V.'s bank account. [Dkt. 46-5.] Because Defendants request dismissal for lack of subject matter jurisdiction, the Court may consider documents outside of the pleadings. Further, these court records are subject to judicial notice. Armstrong v. JPMorgan Chase Bank Nat. Ass'n, 633 Fed.Appx. 909, 911 (10th Cir. 2015).
County Court Judge Anne M. Ollada presided over Plaintiff's small claims case. During a hearing where Judge Ollada ordered the Bank to produce J.M.V.'s bank statements, Plaintiff and at least three witnesses allegedly saw Judge Ollada turn toward the Bank's lawyer and “[whisper] the word redact and [move] her hand as if she was erasing information.” [Dkt. 38 at p.5.] And when the Bank produced the records, they were heavily redacted but for the dollar amounts. [Id.] Following a trial on April 7, 2021, Judge Ollada dismissed Plaintiff's claims and awarded the Bank its attorney's fees and costs. [Dkt. 46-3, Dkt. 46-5.]
On June 8, 2021, Plaintiff appealed his case to the Arapahoe County District Court. But because he failed to file his appeal within 14 days of Judge Ollada's order dismissing his case, District Judge Frederick T. Martinez dismissed the appeal as untimely and awarded the Bank its attorney's fees and costs. [Dkt. 46-4.] Plaintiff alleges the Arapahoe County District Court never served him with the order of dismissal. [Dkt. 38 at p.11.]
Plaintiff next filed this lawsuit under 42 U.S.C. § 1983 against Judges Ollada and Martinez asserting they violated his constitutional right to due process of law. [Dkt. 38.] The Judges seek dismissal of Plaintiff's case based on, inter alia, absolute judicial immunity and sovereign immunity. [Dkt. 46.] The Court has considered the Amended Complaint, the Motion to Dismiss, its related briefing and attachments, and the relevant law.The Court has liberally construed the Plaintiff's filings (as required) because he is not represented by counsel. No hearing is necessary. For the following reasons, the Court RECOMMENDS the Motion be GRANTED.
Nominally, Plaintiff asserts his claims against Defendants in their official capacities as judges. However, he seeks an award of damages, which is only available against those acting in their individual capacities. In this case, it is a distinction without a difference because the Court concludes both absolute and sovereign immunity apply.
Plaintiff filed a surreply, which is not contemplated by the Federal Rules of Civil Procedure. Plaintiff neither requested nor received permission to file a surreply, and therefore, the Court has not considered it. Although Plaintiff proceeds pro se, he is nevertheless obligated to adhere to the same rules governing licensed attorneys.
ANALYSIS
A. Subject Matter Jurisdiction
Federal courts, as courts of limited jurisdiction, must have a statutory basis for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)). Under Federal Rule of Civil Procedure 12(b)(1), the court may dismiss a complaint for lack of subject matter jurisdiction. The determination of a court's subject matter jurisdiction is a question of law. Madsen v. United States ex rel. U.S. Army, Corps of Eng' rs, 841 F.2d 1011, 1012 (10th Cir. 1987). “A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
A motion to dismiss for a lack of subject matter jurisdiction may take two forms. See Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). It may facially attack a complaint's allegations or it may challenge the facts upon which subject matter jurisdiction depends. Id. at 1002-1003.
When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.Id. at 1003 (internal citations omitted); see also Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987). “The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
B. Absolute Judicial Immunity
It is well established judges are absolutely immune from suit when “resolving disputes between parties who have invoked the jurisdiction of a court.” Forrester v. White, 484 U.S. 219, 227 (1988). The only exceptions to this rule are where a judicial officer's actions are “not taken in the judge's judicial capacity” or, though judicial in nature, are taken “in the complete absence of all jurisdiction.” Stein v. Disciplinary Bd. of Supreme Ct. of NM, 520 F.3d 1183, 1195 (10th Cir. 2008). “[T]he factors determining whether an act by a judge is a ‘judicial' one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they deal with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. 349, 362 (1978). A judge is absolutely immune for his judicial acts even if the exercise of authority was “flawed by the commission of grave procedural errors.” Id. at 359.
1. Hon. Anne M. Ollada
Plaintiff contends judicial immunity is inapplicable to Judge Ollada because she engaged in ex parte communications with defense counsel, and therefore, she was acting outside of her judicial capacity. [Dkt. 38 at pp.7-10.] The Court is not persuaded.
First, an ex parte communication is one “between counsel or a party and the court when opposing counsel or party is not present.” Black's Law Dictionary (11th ed. 2019) (defining ex parte communication) (emphasis added). “Generally, the danger posed by an ex parte communication between a litigant and the court is that the court's impartiality may be compromised by the communication itself and the other litigant's inability to refute or clarify the substance of the communication.” Kaufman v. Am. Fam. Mut. Ins. Co., 601 F.3d 1088, 1095 (10th Cir. 2010).
But the allegations in the Amended Complaint fail to establish any ex parte conversations. Rather, according to Plaintiff, when Judge Ollada told the Bank's attorney to redact the bank statements, she did so in open court, from the bench, and with Plaintiff and other witnesses present. To be sure, Plaintiff apparently heard Judge Ollada make the statement, and yet, he neither objected nor sought clarification regarding her instruction to redact the documents. This simply is not an ex parte communication even when construing the Amended Complaint liberally.
Second, even if Judge Ollada's instructions could be construed as inappropriate ex parte communications, judicial immunity would nevertheless apply. “A judge will not be deprived of immunity because the action [she] took was in error, was done maliciously, or was in excess of [her] authority.” Crudup v. Schulte, 12 Fed.Appx. 682, 686 (10th Cir. 2001) (allegations judge conducted an ex parte meeting with the assistant district attorney did not abrogate judicial immunity).
There can be no question Judge Ollada's allegedly inappropriate actions were taken in her judicial capacity as she presided over Plaintiff's case. As a county court judge, she was vested with jurisdiction over civil matters, including Plaintiff's matter. Colo. Const. art. VI, § 17; Colo. Rev. Stat. §§ 13-6-104, 13-6-403. Her statements were made during a hearing regarding the production of evidence related to a trial. There simply are no factual allegations to plausibly suggest Judge Ollada acted outside of her judicial capacity or in the clear absence of jurisdiction. Therefore, the Court recommends finding she is immune from § 1983 liability in this case. See Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994) (where judges allegedly engaged in unconstitutional conduct while presiding over [the plaintiff's] trial, the judges were performing judicial acts and were entitled to absolute judicial immunity).
2. Hon. Frederick T. Martinez
Plaintiff contends that when the Arapahoe County District Court failed to properly serve him with the order dismissing his appeal, Judge Martinez lost all jurisdiction over his case. [Dkt. 38 at pp.10-12.] Plaintiff cites certain cases to support his argument, however, those cases do not ultimately provide that support. For example, Plaintiff relies on Taylor v. Taylor, 273 P. 878 (1928), for the proposition that “notice is jurisdictional.” But the “notice” in Taylor was the relevant notice of appeal. There, the appellant filed the notice of appeal prior to the entry of final judgment, and in derogation of the statute governing appeals. The appellant's failure to properly comply with the rules for filing an appeal deprived the Colorado Supreme Court of its jurisdiction to hear the matter. Id. at 878-79.
Plaintiff does not deny he filed his appeal late and in derogation of the rules. Thus, Taylor ultimately supports Judge Martinez's dismissal order.
Plaintiff also cites Weber v. Williams, 324 P.2d 365 (1958), wherein the Colorado Supreme Court concluded the “absence of legal service or authorized appearance is jurisdictional.” Id. at 369. But in that instance, the legal service at issue was service of the summons and complaint on the defendant, without which the court could not exercise jurisdiction over the case. Weber does not stand for the proposition that a court's failure to serve a party with a final order of dismissal strips the court of jurisdiction. Plaintiff has not cited any other cases to support his position, and the Court is aware of none.
It is also worth noting Plaintiff fails to allege Judge Martinez is responsible for ensuring orders are served on parties, as opposed to another district court employee.
As a district court judge, Judge Martinez had appellate jurisdiction over matters in the county court, including appeals of small claims court decisions. Colo. Const. art. VI, §§ 9, 17; Colo. Rev. Stat. § 13-6-410; Colo. R. Civ. P. 411. In reviewing and dismissing Plaintiff's appeal as untimely, he was inarguably acting in his judicial capacity. The allegations in the Amended Complaint do not plausibly demonstrate Judge Martinez was acting in clear absence of jurisdiction, and therefore, the Court recommends finding Judge Martinez is also entitled to absolute judicial immunity.
C. Sovereign Immunity
“An official capacity claim against a government officer is really a claim against the government that employs that officer.” Strepka v. Miller, 28 Fed.Appx. 823, 828 (10th Cir. 2001). Consequently, Plaintiff's official capacity claims against Judges Ollada and Martinez are really claims against the State of Colorado. The Eleventh Amendment “generally bars suits brought by individuals against state officials acting in their official capacities. This bar does not apply, however, if the state waives its sovereign immunity, if Congress validly abrogates the state's immunity, or if the Ex parte Young exception applies.” Harris v. Owens, 264 F.3d 1282, 1289-90 (10th Cir. 2001). Ex parte Young creates an exception to Eleventh Amendment immunity for a suit against a state official that “seeks prospective relief for the official['s] ongoing violation of federal law.” Id. at 1290.
It is undisputed Colorado has not waived its Eleventh Amendment immunity to be sued in federal court. See Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988). It is also undisputed that 42 U.S.C. § 1983 does not abrogate a state's Eleventh Amendment immunity. Quern v. Jordan, 440 U.S. 332, 345 (1979). And despite his statement otherwise, Plaintiff does not seek prospective relief. Even under a liberal construction, the Amended Complaint pleads claims against the Judges seeking redress for past wrongs-specifically, damages and reversals of their respective prior orders-and it does not assert an ongoing violation of federal law. [Dkt. 38 at pp.1415.] Therefore, the Court recommends finding Plaintiff's official capacity claims are barred by the Eleventh Amendment.
* * *
Based on the foregoing, the Court RECOMMENDS the Motion to Dismiss [Dkt. 46] be GRANTED and this case be dismissed.
ADVISEMENT
The parties have 14 days after service of this recommendation to serve and file any written objections to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within 14 days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).