Opinion
Civil Action 1:20-cv-01292-CMA-SKC
07-02-2021
DEANNA ROSS, et al., Plaintiff, v. ROBERT PINO, et al., Defendants.
RECOMMENDATION RE: DEFENDANTS' MOTIONS TO DISMISS [#20 & #24]
S KATO CREWS UNITED STATES MAGISTRATE JUDGE
When L.P. (the child of Plaintiff Deanna Ross and Defendant Robert Pino) was eight years old, he was disciplined at school for making inappropriate comments to another student. [#9 at ¶¶10, 17.] At the time, L.P. said his comments were related to a video he'd seen on YouTube. [Id. at ¶18.] However, when he went to stay with Pino, a law enforcement officer with the Rio Grande Sheriff's Department, L.P. then said the inappropriate comments were based on Plaintiff Jason Ross's conduct. [Id. at ¶¶20-21.] Jason Ross is L.P.'s half-brother and was also a minor at the time. [Id. at ¶21.]
The Court uses “[#]” to refer to specific docket entries in CM/ECF.
These facts are drawn from Plaintiffs' Amended Complaint and are presumed true for the purpose of ruling on Defendants' Motion.
On May 8, 2021, Deanna Ross tried to pick L.P. up from school, but was told by Monte Vista Police Officers Michael Martinez and Ezekiel Sisneros that L.P. would not be released to her custody. [Id. at ¶29-30.] The following day, the Department of Social Services (DSS) interviewed L.P. [Id. at ¶22.] Based on the interview, DSS did not find a basis to change the parties' custody arrangement. [Id. at ¶25.] And, following an emergency hearing, the Rio Grande County district court also concluded the custody arrangement would remain intact, but ordered Jason Ross could not be alone with L.P., and ordered DSS to perform wellness checks. [Id. at ¶38.]
Officer Martinez was also named as a Defendant in this case, but the parties have since informally resolved the claims against him, and he was dismissed from this action. [See #37, #48, #53, #33.]
The Court observes that several of Plaintiffs' allegations of fact are presented out of chronological order, and therefore, the Complaint is at times confusing or misleading as to what conduct was taken in direct relation to the DSS findings and the Colorado district court's orders.
Later in the year, L.P. told his counselor he made up the story about Jason's conduct. [Id. at ¶40.] Thereafter, the Monte Vista Police Department (MVPD), in conjunction with the Rio Grande District Attorney's Office, conducted additional forensic interviews of L.P. [Id. at ¶¶41-42.] Based on these interviews, the District Attorney charged Deanna Ross and her husband, Plaintiff Armando Ross, with felony
witness tampering, intimidating a witness, and misdemeanor child abuse. [Id. at ¶¶43, 49-50, 52.] These charges were later dismissed. [Id. at ¶¶50, 51, 53.]
Plaintiffs initiated this lawsuit on May 7, 2020, asserting Pino and Defendant Joseph Lukow, an investigator for the District Attorney's Office, violated Plaintiffs' constitutional rights to due process and familial association. [#9 at ¶¶59-69, 70-84.] Defendants seek dismissal of Plaintiffs' case in its entirety. [#20 & #24.] The Court has considered the Motions, related briefing, and the relevant law. No. hearing is necessary. For the following reasons, the Court RECOMMENDS both Motions be GRANTED.
LEGAL ANALYSIS
A. Standards of Review
Both Defendants argue this case should be dismissed for failure to state a claim upon which relief can be granted. Defendant Lukow further argues he is entitled to qualified immunity.
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the Court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova, 595 F.3d v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (internal citations omitted). The Court is not, however,
“bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. at 678 (internal quotation marks omitted).
The Twombly/Iqbal pleading standard requires courts take a two-prong approach to evaluating the sufficiency of a complaint. Id. at 678-79. The first prong requires the court to identify which allegations “are not entitled to the assumption of truth” because, for example, they state legal conclusions or merely recite the elements of a claim. Id. at 678. The second prong requires the court to assume the truth of the well-pleaded factual allegations “and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. “Accordingly, in examining a complaint under Rule 12(b)(6), [courts] will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). In other words, the court strips the complaint bare of the deficient allegations and determines whether the remainder plausibly states a claim for relief. The standard is a liberal one, however, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely.” Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009).
2. Qualified Immunity
Qualified immunity shields “government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation omitted). Qualified immunity is “immunity from suit rather than a mere defense to liability [and] it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Whether defendants are entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007).
In resolving a motion to dismiss based on qualified immunity, the court must consider two things: (1) “whether the facts that a plaintiff has alleged . . . make out a violation of a constitutional right, ” and (2) “whether the right at issue was clearly established at the time of defendant's alleged misconduct.” Pearson, 555 U.S. at 232. The plaintiff bears the burden of alleging facts and law to establish the inference that the defendant violated a clearly established federal constitutional or statutory right. Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir. 1994). If the plaintiff fails to satisfy either prong, the defendant is entitled to qualified immunity. Pearson, 555 U.S. at 236. The court has the discretion to consider these prongs in any order. Leverington v. City of Colorado Springs, 643 F.3d 719, 732 (10th Cir. 2011).
B. Malicious Abuse of Process
Plaintiffs contend Defendants violated the Fourteenth Amendment when-in order to give Pino an advantage in the custody proceedings-they brought unfounded criminal charges against Plaintiffs. [#9 at ¶¶61-62.] They title this claim for relief “Malicious Abuse of Process.” [#9 at ¶¶59-69.] In their Response to Lukow's Motion, Plaintiffs clarify they are asserting constitutional claims of malicious prosecutionand abuse of process, and argue they have sufficiently pleaded the elements under Colorado law. [#36 at pp.3-8.]
The Court observes a malicious prosecution claim against a police officer is somewhat misplaced. As Justice Ginsberg discussed in her concurrence in Albright v. Oliver, 510 U.S. 266, 279 n. 5 (1994), the principal player in carrying out a prosecution is not the police officer but, rather, the prosecutor. Such cases are an anomaly because “the star player is exonerated, but the supporting actor is not.” Id.
Although “courts have used the common law of torts as a ‘starting point' for determining the contours of claims of constitutional violations, ” the primary inquiry in any § 1983 action, “regardless of the analogous common law tort, is whether the plaintiff has alleged an actionable constitutional violation.” Becker v. Kroll, 494 F.3d 904, 913 (10th Cir. 2007) (citing Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir.2004)).
The Tenth Circuit has repeatedly recognized that, “at least prior to trial, the relevant constitutional underpinning for a claim of malicious prosecution under § 1983 must be ‘the Fourth Amendment's right to be free from unreasonable seizures.'” Id. at 914 (quoting Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996)). Plaintiffs acknowledge they were not arrested, and therefore, cannot assert
claims under the Fourth Amendment; but, citing Becker v. Kroll, they assert their claims are viable under the Fourteenth Amendment due process protections. [#36 at p.4.] Plaintiffs have not specified whether their claims are based on substantive or procedural due process violations; in conclusory fashion, they simply reiterate their position Defendants used the criminal and judicial process in an improper manner. Under either analysis, dismissal is warranted.
Plaintiffs also cite cases from the Second, Third, and Fourth Circuits in support of their position. [#36 at p.4.] Their cases are immediately distinguishable, however, because those plaintiffs were arrested. See Cook v. Sheldon, 41 F.3d 73 (2nd Cir. 1994) Rose v. Bartle, 871 F.2d 331 (3rd Cir. 1989); Cramer v. Crutchfield, 648 F.2d 943 (4th Cir. 1981). Further, the Court need not look to other circuits because Tenth Circuit precedent is both clear and binding.
In Becker, the plaintiff doctor was criminally charged with fraudulent billing, but was never arrested and the charges against her were ultimately dismissed. 494 F.3d at 909. The plaintiff filed suit asserting, inter alia, a claim for malicious prosecution under the Fourth and Fourteenth Amendment. Id. In its analysis, the Tenth Circuit first noted Supreme Court precedent stating, “substantive due process may not furnish the constitutional peg on which to hang” a claim of malicious prosecution. Id. at 918 (quoting Albright v. Oliver, 510 U.S. 266, 270 n. 4 (1994)). The Circuit Court went on to conclude “the unavoidable construction of Albright is that no § 1983 claim will arise from filing criminal charges without probable cause under the substantive due process protections of the Fourteenth Amendment.” Id. (emphasis added). Rather, plaintiffs who have been charged without due process
must proceed under the explicit textual protections of the Fourth Amendment. Id. at 918-19 (“[T]he Fourth Amendment protects a person's liberty interests under the constitution by ensuring that any arrest or physical incarceration attendant to a criminal prosecution is reasonable.”). As in Becker, Plaintiffs' substantive due process claims arise from the filing of criminal charges without due process, and therefore, they are not actionable under the Fourteenth Amendment and should be dismissed.With respect to procedural due process, the Becker court “acknowledge[d] that the Fourteenth Amendment's protections encompass harms to liberty outside the scope of the Fourth Amendment's concern with freedom from restraint, such as harm to reputation resulting in some tangible injury.” Id. at 920 (citing Michael H. v. Gerald D., 491 U.S. 110, 121 (1989); Paul v. Davis, 424 U.S. 693, 701 (1976);
In Becker, the Tenth Circuit acknowledged its line of cases recognizing § 1983 substantive due process claims for violations of the Fourteenth Amendment (apart from those based on criminal charges without due process) in the narrowest of circumstances. Becker, 494 F.3d at 922-23. The conduct alleged “must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power ... [It] must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.” Id. (citing Livsey v. Salt Lake County, 275 F.3d 952, 957-58 (10th Cir. 2001). The circuit has been clear “these constitutional protections apply to transgressions above and beyond those covered by the ordinary civil tort system; the two are not coterminous.” Williams v. Berney, 519 F.3d 1216, 1220 (10th Cir. 2008). Plaintiffs' claim appears to be based solely on the criminal charges, but to the extent they also rely on allegations regarding a continued criminal investigation, the allegations do not meet this rigorous standard. See Becker, 494 F.3d at 923 (plaintiff's allegations regarding groundless investigation did not “meet the affronts to personal autonomy suggested by [Tenth Circuit] case law”). And as further discussed, Plaintiffs have well-defined causes of action under state law to vindicate their interests.
Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)). While Plaintiffs claim their reputations were damaged, they have not alleged any resulting tangible injury. Even if they had, “procedural due process only protects against [these injuries] by providing an adequate post-deprivation hearing in which the injured party may vindicate these interests.” Id.
According to Plaintiffs, the Colorado district court “did not have the authority to preclude Defendants' unauthorized conduct, ” and therefore, there are no adequate state law post-deprivation remedies to address these violations. [#9 at ¶¶64-65.] But the Supreme Court has held that where pre-deprivation remedies cannot anticipate and prevent a state actor's wrongful act, post-deprivation state tort remedies are adequate to satisfy due process requirements. See Parratt v. Taylor, 451 U.S. 527, 535-44 (1981) (“[P]ostdeprivation remedies made available by the State can satisfy the Due Process Clause.”). Here, Plaintiffs have specifically acknowledged Colorado law governing both malicious prosecution and abuse of process, Hewitt v. Rice, 154 P.3d 408, 411, 414 (Colo. 2007). Thus, Colorado's tort law provides an adequate procedural due process remedy for any injuries not cognizable as a Fourth Amendment seizure. Plaintiff's first claim for relief should be dismissed against both Defendants.
C. Interference with Familial Association
Plaintiffs' Response contains many allegations not included in their Amended Complaint. In addition, Defendant Pino and Plaintiffs refer to the criminal investigation file, which was attached to Pino's Motion. The Court, in its discretion, declines to consider any of the additional allegations or outside evidence and confines its analysis to the four corners of the Amended Complaint.
In their second claim for relief, Plaintiffs contend Pino and Lukow interfered with their right to familial association in violation of the Fourteenth Amendment. To succeed on this, Plaintiffs must plausibly allege (1) Defendants intended to deprive Plaintiffs of a protected relationship; and (2) Plaintiffs' interest in the protected relationship outweighs the state's interest in an unwarranted intrusion into that relationship. Melnick v. Camper, 487 F.Supp.3d 1039, 1053 (D. Colo. 2020) (citing Halley v. Huckaby, 902 F.3d 1136, 1153 (10th Cir. 2018)). In applying this test and the balancing it requires, the “ultimate inquiry is whether each defendant's conduct shocks the judicial conscience.” Halley, 902 F.3d at 1156. This requires more than mere negligence; the behavior complained of must be egregious and outrageous, and a display of arbitrary power being used as an instrument of oppression. Doe v. Woodard, 912 F.3d 1278, 1301 (10th Cir. 2019) (citations and internal punctuation omitted).
1. Defendant Robert Pino [#20]
Defendant Pino first argues this Court should apply the “domestic relations exception” and abstain from deciding the issues in this case. [#20 at pp.4-12.] He also argues Plaintiffs have failed to sufficiently allege “state action.” [Id. at pp.12-14.] The
Court does not address Pino's arguments regarding abstention because “it is generally recognized that the Domestic Relations Exception is a statutory exception, growing out of the diversity statute, 28 U.S.C. § 1332, and thus applies only in cases where the federal court's subject-matter jurisdiction is premised upon diversity.” C.N. by Nedd v. Meinster, No. 18-cv-00620-MSK-MEH, 2019 WL 200750, at *2 (D. Colo. Jan. 15, 2019), aff'd, 791 Fed.Appx. 746 (10th Cir. 2019). Here, Plaintiffs' claims are based on the existence of a federal question. And in that regard, the Court finds Plaintiffs have failed to plausibly allege Pino acted under color of state law.
“Under Section 1983, liability attaches only to conduct occurring ‘under color of law.'” Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). “[M]erely private conduct, no matter how discriminatory or wrongful, ” is excluded from the reach of §1983. Am. Mfrs. Mut. Inc. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks and citations omitted).
Although Defendant Pino is an officer with the Rio Grande Sheriff's Office, it is “well-settled that the ‘acts of officers in the ambit of their personal pursuits' are not ‘under color of law.'” Dry v. City of Durant, 242 F.3d 388 (10th Cir. 2000) (quoting Screws v. United States, 325 U.S. 91, 111 (1945)). Instead, “before conduct may be
fairly attributed to the state because it constitutes action under color of state law, there must be a real nexus between the employee's use or misuse of their authority as a public employee, and the violation….” Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1156 (10th Cir. 2016) (internal quotations and citations omitted).
Here, Plaintiffs allege “upon information and belief” Pino “used his power and authority as a law enforcement officer and his relationship with other officers” to “direct” members of the MVPD to (1) pick L.P. up from school and return him to Pino's custody; (2) conduct forensic interviews; and (3) bring criminal charges against Plaintiffs. But these allegations are conclusory. There are no allegations of fact suggesting how Pino, as an officer with an entirely separate law enforcement agency, would have any authority to direct members of the MVPD or District Attorney's Office to act. Further, Plaintiffs' allegations based “upon information and belief” are insufficient and speculative without additional factual allegations to support them. See Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.”).
In their Response, Plaintiffs note Pino formerly worked for the MVPD and has two brothers currently working there. [#40 at p.10 n.1.] However, there are no factual allegations indicating either brother acted in this case, and there are no factual allegations to allow a plausible inference that Pino's former employment resulted in his present influence on members of that department causing those members to act
in this case. Without more, accepting Plaintiffs' arguments would require this Court to make numerous inferential leaps which are unsupported by factual allegations. Consequently, Plaintiffs' allegations fail to establish Pino acted as anything other than a private citizen and father when he contacted the MVPD. See Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1156 (10th Cir. 2016) (“any citizen can report suspicious activity to the police” and the fact city parking officers did so did not constitute an exercise of power by virtue of law); see also Carlos v. Santos, 123 F.3d 61, 65 (2d Cir. 1997) (defendant was not a state actor when he made a “police complaint in his own name” because “[a]ny citizen may perform these acts” and “they were not made possible only because the wrongdoer[s] [were] clothed with the authority of state law” (quotation marks and citation omitted)). The Court recommends Plaintiffs' second claim against Defendant Pino be dismissed.
2. Defendant Joseph Lukow [#24]
Apart from the statement of Lukow's residence in Colorado, Plaintiffs' Complaint contains only five allegations regarding Lukow's conduct in this matter. Two allegations state Lukow was present during two of the forensic interviews. [#9 at ¶¶23, 42.] The third alleges Lukow “used [his] power and authority to convince school personnel to allow Sergeant Martinez to take L.P. from the school without permission of Plaintiff Deanna Ross.” [Id. at ¶47.] In their fourth, Plaintiffs allege Lukow continued to investigate the Ross family and interview L.P. “in violation of the court's order, ” which (according to Plaintiffs) demonstrates willfulness. [Id. at ¶66.]
And they allege, even after L.P. recanted, Lukow continued to use his authority to drive Plaintiffs apart from L.P. by initiating baseless criminal actions. [Id. at ¶82.]
These allegations fail to establish Lukow intended to deprive Plaintiffs of their relationship with L.P. The only allegation vaguely connected to Lukow's state of mind is Plaintiff's contention Lukow's conduct was willful. This, however, is a legal conclusion unsupported by any factual averments. To be sure, the assertion Lukow acted in violation of a court order is directly contradicted by other of Plaintiffs' allegations-while the Colorado district court apparently declined to amend the custody arrangement, it also acknowledged it did not have any authority to stop the MVPD from conducting a criminal investigation. [#9 at ¶45.] Thus, the allegations in the Amended Complaint suggest an opposite inference that Lukow did not act in contravention of the court's order, and Plaintiffs have not specified any other order he allegedly “violated.” Therefore, the Court recommends finding Defendant Lukow is entitled to qualified immunity, and therefore, this claim should be dismissed. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (“If no constitutional right would have been violated were the allegations established, ” the qualified immunity inquiry is at an end.).
* * *
Based on the above, the Court RECOMMENDS both Motions to Dismiss be GRANTED.
BY THE COURT:
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge and waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140, 148-53 (1985); Makin v. Colorado Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).