Opinion
Civil Action 1:23-cv-01738-SBP
07-09-2024
NATHAN J. SMITH and HOLLY M. SMITH, Plaintiffs, v. WCDTF, et al., Defendants.
RECOMMENDATION AND ORDER BY UNITED STATES MAGISTRATE JUDGE
SUSAN PROSE, UNITED STATES MAGISTRATE JUDGE
This matter comes before the court on three dispositive motions: (1) a motion to dismiss filed by Defendants associated with Grand Junction, Colorado, ECF No. 40; (2) a motion to dismiss filed by four Colorado state court judges, ECF No. 41; and (3) a motion to dismiss filed by Defendants affiliated with Mesa County, Colorado, ECF No. 70. This court has reviewed the motions, the applicable case law, and the entire case file, and concludes that oral argument will not materially assist in the resolution of the motions. The court respectfully RECOMMENDS that the motions to dismiss be GRANTED and that the case be dismissed in its entirety, as against all Defendants, including those who have not been served or appeared in this matter. The court further DENIES two motions filed by Plaintiffs, which are rendered moot by the court's recommendation. ECF No. 81 (“Motion to Request Judges Instruction”); ECF No. 82 (“Motion to Request District Attorney to Produce 55000 Page Discovery to This Court”).
While the undersigned is currently presiding with the consent of the parties in accordance with 28 U.S.C. § 636(c)(1), because not all named Defendants have been served at this time, the court takes the cautious approach of issuing a recommendation on these dispositive matters and having the case drawn to an Article III judicial officer. See Walker v. Calhoun, No. 21-cv-01524-MEH, 2022 WL 827411, at *4 n.2 (D. Colo. Feb. 25, 2022), report and recommendation adopted, 2022 WL 824434 (D. Colo. Mar. 18, 2022) (observing that “[t]here appears to be a circuit split on whether, in this instance, consent would need to be achieved from the unserved party,” and noting that “[t]he Tenth Circuit has not weighed in on this issue”) (citations omitted). Like Chief United States Magistrate Judge Hegarty, this court deems it the better course to issue a recommendation to dismiss and to have the case drawn to an Article III judicial offer. See id.
BACKGROUND
I. The Ongoing State Criminal Proceedings Against Plaintiffs
On June 22, 2021, Plaintiffs Nathan J. Smith and Holly M. Smith (also known as Holly Marie Whittaker-Smith) were arrested by officers of the Mesa County, Colorado, Sheriffs Office for possession of schedule I and schedule II controlled substances in violation of Colorado Revised Statute § 18-18-403.5(2), both level 1 drug misdemeanors, and possession with intent to distribute more than fifty pounds of marijuana in violation of Colorado Revised Statute § 18-406(2)(b), a level 1 drug felony. People v. Holly Marie Whittaker-Smith, No. 2021CR917(Mesa Cnty. District Court), 6/22/2021 Affidavit in Support of Warrantless Arrest at 2 (Register of Actions at 16); People v. Nathan James Smith, No. 2021CR918 (Mesa Cnty. District Court), 6/22/2021 Affidavit in Support of Warrantless Arrest at 2 (Register of Actions at 12). In addition, Nathan Smith was arrested for possession of a weapon by a previous offender in violation of Colorado Revised Statute § 18-12-108, a class 6 felony. Nathan Smith Arrest Affidavit at 2. According to the arrest affidavits, while executing a sealed search warrant on property where Plaintiffs were known to reside, officers with the Mesa County Sheriff's Office and Grand Junction Police Department discovered 30 pounds of processed marijuana and 118 unprocessed flowering marijuana plants in an airplane hangar on the property. Affidavits at 2. In Plaintiffs' bedroom in the main residence, officers located suspected methamphetamine and suspected psilocybin mushrooms; a .50 caliber Smith & Wesson Magnum handgun, which Nathan Smith was not authorized to have because of a previous felony conviction; and processed marijuana inside plastic totes-“[t]he same plastic totes were located inside the hangar with processed marijuana from the grow.” Id.
The court may take judicial notice of filings in related cases, “both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue”-as these filing unquestionably do. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979). In addition, the court also may take judicial notice of undisputed court documents and matters of public record as facts “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1219 n.2 (10th Cir. 2011) (citation omitted) (noting that under Federal Rule of Evidence 201, judicial notice may be taken “whether requested or not,” and “at any stage of the proceeding”). Here, there can be no credible dispute concerning the accuracy of the public state court records of the criminal proceedings against Plaintiffs.
The Arrest Affidavit indicates that the felon-in-possession charge was a class 6 felony, although the current iteration of the statute describes the crime as a class 5 felony. See Colo. Rev. Stat. § 18-12-108(2).
The court draws from the Fourth Amended Complaint, ECF No. 23 (“Complaint”), the operative complaint here, that the property-consisting of a compound-type environment that included an airplane hangar and several “residences”-was the subject of a multi-jurisdictional drug task force raid on June 22, 2021. Complaint at 4, 6.
Thus began the state criminal proceedings against Plaintiffs, which are ongoing. See Nathan Smith Register of Actions at 1 (showing filing dated 7/1/2024); Whittaker-Smith Register of Actions at 1 (showing filing dated 7/1/2024).
This court last reviewed the Registers of Actions on July 5, 2024.
II. The Instant Litigation
Plaintiffs filed the instant litigation on July 10, 2023. In their Complaint, Plaintiffs raise numerous allegations against nearly eighty defendants, most of whom have not been served or entered an appearance in this case. Regardless, mindful of its duty to pro se litigants, this court has carefully reviewed the densely-written 39-page Complaint. From that review, a fundamental point emerges: the instant litigation is a direct attack on the ongoing state criminal proceedings against Plaintiffs in Mesa County District Court. The following allegations-including, notably, allegations focused on Plaintiffs' defenses in the criminal case-illustrate the point:
The court reviews the pleadings and other papers or pro se litigants “liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). But the court's “role is not to act as [a pro se litigant's] advocate.” Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). Neither will it “construct arguments or theories for the plaintiff in the absence of any discussion of those issues.” Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991). The court applies the same procedural rules and substantive law to Plaintiffs as to represented parties. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir. 2008); Dodson v. Bd. of Cnty. Comm'rs, 878 F.Supp.2d 1227, 1235-36 (D. Colo. 2012). For ease of reading, the court corrects spelling and grammatical errors in Plaintiffs' filings without using “sic.” No content has been altered.
Because of the prolixity of Plaintiff's allegations, the court does not endeavor to list every assertion about the criminal proceedings. The numbers in parentheticals are to page numbers in the Complaint.
• “Plaintiffs were wrongfully arrested, unlawfully detained, twice, wrongfully charged, wrongfully accused, their home was destroyed by the unnecessary excessive force, their home was illegally confiscated from them, arrested by the wrong jurisdiction on private property on a private road.” (7)
• “Plaintiffs were wrongfully arrested for a crime they did not commit. Defendants' own surveillance reports, recordings, photos, and case story will prove this.” (6)
• There has been “unnecessary delay of due process rights, [Plaintiffs'] rights to
speedy trial delayed” in the state criminal proceeding. (8)
• “The plaintiffs were falsely charged and accused with the following list of charges” in the state criminal proceedings [listing charges]. (18)
• It has taken “almost 24 months to get [Plaintiffs] to preliminary hearings” in the state criminal proceedings. (19)
• “The statutes of limitations are up on several of the counts against [Plaintiffs] and should have been dropped and dismissed, because they were illegally obtained.” (19)
• “The judge [in the state criminal proceedings] completely stripped plaintiffs bare of all of their civil rights, constitutional rights, tenant rights, buyer rights.” (20)
• Plaintiffs are “not liable [in the underlying criminal cases], we're not responsible, we're not the owners, we're not in a contract, we're not in a lease, we're not tenants, we're not aware of any marijuana, we're not associated with Growers.” (22)
• “Planes are only ever on the property maybe seven days a month.” (22)
• “If Plaintiffs were arrested and charged with the tenants' grow, but the Plaintiffs were not the one legally in control legally liable for legally the owners, wouldn't it ring true that the actual sellers should've been arrested instead of the Plaintiffs?” (22)
• “These particular tenants were the target of a western Colorado drug task force investigation, already in full affect, and the tenant had already been on law enforcement radar for another grow operation across town where he had 500 plants.” (24)
• “The [state] trial court's denial of the motion to dismiss [the charges against Plaintiffs] was an abuse of discretion.” (33)
• “A more ill-conceived symphony of criminal procedure with the [state] court as both composer and conductor is difficult to envision. Absent dismissal [of the state court charges] the prejudice to both the People and the defendant, the potential damage to the court's image and integrity and the inexcusable waste of judicial
resources is self-evident and inevitable.” (38)
Plaintiffs allege that the approximately eighty Defendants they have sued here-a group consisting of state court judges and prosecutors, multiple state and municipal agencies and officers, and the Federal Bureau of Investigation and United States Drug Enforcement Agency- violated their rights under the First, Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Eleventh, and Fourteenth Amendments, and various Colorado criminal statutes. They raise a plethora of claims pursuant to 42 U.S.C. § 1983, including excessive force, unreasonable search and seizure, and “wrongful arrest and unlawful detainment,” along with claims that purport to attack their conditions of confinement during the two days they were confined in the Mesa County Detention Facility following their arrests on June 22, 2021. See generally Complaint; see also id. at 10, 13 (allegations concerning conditions in “detention cell” during two-day confinement). While Plaintiffs seek hundreds of thousands of dollars in monetary damages from the various Defendants, the essence of the relief they demand is for this court to direct the “DA to drop, and dismiss this cases and ALL charges against us” and to order that they be “exonerated” in those criminal proceedings and receive “exoneration awards.” (8) They “request this court to intervene and provide them a solution or award for the outrageous conduct of the people involved,” including the state court “judge and the pretrial services” officers assigned to their state criminal cases. (19)
The record subject to judicial notice by this court highlights Plaintiffs' use of the instant federal lawsuit as a device to compel the state court to bend to their will in the criminal proceedings. For example, they have filed a “Formal Motion Requesting Substitution of Judge” in the state proceedings, pointing to the instant litigation and the fact that one of the nearly fourscore defendants here is Twenty-First Judicial District Judge Valerie Robison, the state judicial officer who is presiding over their criminal proceedings-along with Defendants the Twenty-First Judicial District Attorney's Office, the District Attorney, and each Assistant District Attorney who has touched their criminal cases. See 1/12/2024 Motion, Case No. 2021CR918; see also Complaint at 4 (listing these persons as Defendants). In seeking Judge Robison's removal from the criminal cases, Plaintiffs' defense counsel “stress[ed]” that “[r]egardless of the outcome of 23-CV-1738-SBP, the filing of the federal suit alone creates the appearance of a conflict in this matter.” See 1/12/2024 Motion ¶¶ 13, 15, Case No. 2021CR918 (emphasis added); see also 1/12/2024 Formal Motion Requesting Substitution of Judge ¶¶ 13, 15, Case No. 2021CR917 (same).
Judge Robison did not agree:
In this case, the Defendant asserts that because a federal lawsuit was filed, the Court must recuse itself to prevent any appearance of bias. This argument is not supported by any factual evidence of an actual bias. Hence, the Court determines the filing of a federal lawsuit naming the Court, under the circumstances of this case, is not grounds for disqualification.
2/1/2024 Order at 7, Case No. 2021CR917; see also id. (observing that “[t]he Colorado Court of Appeals discussed several cases that reflected a ‘concern that to allow litigants or attorneys to take an action critical of a trial judge and later assert the judge's knowledge of that action as a basis for disqualification would encourage impermissible judge-shopping”) (citing Bocian v. Owners Ins. Co., 482 P.3d 513 (Colo.App. 2020)). Judge Robison, who remains the state judicial officer assigned to Plaintiffs' criminal cases, rejected a similar stratagem in which Plaintiffs sought the removal of the prosecution team, and the appointment of a “Special Prosecutor,” because “[t]he Smiths have filed a federal lawsuit against current opposing counsel in this case.” 1/12/2024 Request for a Special Prosecutor ¶¶ 1-2, Case No. 2021CR918 (citing case number 23-cv-0173-SBP); 2/1/2024 Order at 7, Case No. 2021CR917 (“[T]he Court determines that the Defendant has not met the burden of showing that it is unlikely that the Defendant will receive a fair trial if the prosecutors remain on the case. The ‘special circumstances' of this case are not extreme and the burden to disqualify the prosecutors has not been met.”).
The motion docketed at ECF No. 82 in the instant matter further emphasizes Plaintiffs' use of this litigation to advance their interests in the state criminal proceedings. In that filing, Plaintiffs ask this court to order the Mesa County District Attorney's Office to produce 55,000 pages of discovery for review by this court, allegedly for the purpose of establishing that law enforcement “officers [in the criminal proceedings] set[] Mr. Smith up to be pre-convicted while letting the grower go as a felon and return a firearms to a felon.” Id. The court also takes notice of Plaintiffs' parallel attempt in this federal judicial district to evade the state court's authority to adjudicate the pending criminal charges against them. Nathan Smith sought to “remove” the ongoing state criminal proceedings against Plaintiffs to this court, a move rejected by the Honorable Lewis J. Babcock in People v. Nathan J. Smith, Case Nos. 2021CR917, 2021CR918. See 5/23/2024 Order for Summary Remand at 4 (summarily remanding Plaintiffs' ongoing state criminal cases to Mesa County District Court after finding no legitimate statutory grounds for removal).
III. Defendants' Motions to Dismiss
As noted at the beginning of this recommendation, three motions to dismiss have been filed in this matter.
The Grand Junction Defendants-the City of Grand Junction, the Grand Junction Police Department, Detective Chris Kopp, and Commander Jason Sawyer-moved to dismiss the Complaint on February 15, 2024. ECF No. 40. They argue that dismissal is required on three grounds: (1) Plaintiffs' failure to allege specific acts attributable to each Defendant renders all claims implausibly pleaded under Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008), id. at 4-5; (2) the court lacks jurisdiction over them because Plaintiffs did not perfect service, id. at 6-8; (3) Plaintiffs' claims are time-barred, id. at 8-10; and (4) this court should decline to exercise jurisdiction over Plaintiffs' collateral attack on the underlying state criminal proceedings pursuant to Younger v. Harris, 401 U.S. 37, 43-45 (1971), id. at 10-11. See also ECF No. 73 (Plaintiffs' Response); ECF No. 76 (Grand Junction Defendants' Reply).
A group of Defendants affiliated with the State of Colorado-Defendants Barrett, Gratten, Flynn, and Brauhm (whose real name is “Raaum”), all of whom are Colorado state court judges-moved to dismiss the Complaint on February 15, 2024. ECF No. 41. The judges posit multiple grounds for dismissal, including: (1) Plaintiffs' claims are barred by the statute of limitations, id. at 6-7; (2) they are entitled to absolute immunity for their judicial actions, id. at 78; (3) the Eleventh Amendment bars Plaintiffs' official-capacity claims, id. at 9; (4) they are entitled to qualified immunity, id. at 10-11; (5) Plaintiffs' state-law tort claims are barred by the Colorado Governmental Immunity Act (“CGIA”) because Plaintiffs did not file a timely notice of claim and their claims do not fall within an exception to the CGIA's waiver of sovereign immunity from such claims, id. at 11-14; and (6) Plaintiffs' allegations do not state any plausible claim for relief, id. at 14-15. See also ECF No. 73 (Plaintiffs' Response); ECF No. 77 (State Defendants' Reply).
The third motion to dismiss was filed on April 17, 2024, by Defendants affiliated with Mesa County: the Mesa County Sheriff's Office, the Mesa County Sheriff, the Mesa County District Attorney's Office, Tearsa Olsen, Nicole Briggs, and William Perry (the “Mesa Defendants”). ECF No. 70. The Mesa Defendants also point to many grounds for dismissal of the claims against them: (1) the statute of limitations has expired and Plaintiffs' claims are time-barred, id. at 5-6; (2) Plaintiffs fail to state a viable municipality claim pursuant to Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691-92 (1978), id. at 7-8; (3) Plaintiffs' state-law tort claims are barred by the CGIA because Plaintiffs failed to file the requisite notice and sovereign immunity has not been waived for these claims, id. at 8-10; (4) the Mesa County District Attorney's Office and its employees are entitled to absolute prosecutorial immunity, id. at 10-11; (5) abstention is required pursuant to Younger or review by this court is jurisdictionally-barred by the Rooker-Feldman doctrine, id. at 13-14; and (6) Plaintiffs have failed to state any plausible claim for relief against any Mesa Defendant, id. at 14-15. See also ECF No. 79 (Plaintiffs' Response); ECF No. 80 (Mesa Defendants' Reply).
See Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Ct. App. v. Feldman, 460 U.S. 462 (1983).
For the reasons that follow, this court recommends that the Motions to Dismiss be granted and the case be dismissed in its entirety, including as to those numerous Defendants who have not been served or appeared in this matter.
ANALYSIS
I. Claims Against the Non-Federal Defendants
The court uses the term “non-federal Defendants” to apply to all Defendants except the FBI and the DEA and any unidentified officers or agents affiliated with those federal agencies.
The court's first obligation is to determine whether it has subject matter jurisdiction. “A federal court must in every case, and at every stage of the proceeding, satisfy itself as to its own jurisdiction,” even if doing so requires sua sponte action. Citizens Concerned for Separation of Church & State v. City & Cnty. of Denver, 628 F.2d 1289, 1297, 1301 (10th Cir. 1980). Absent an assurance that jurisdiction exists, “the court is powerless to continue.” See Cunningham v. BHP Petrol. Gr. Brit. PLC, 427 F.3d 1238, 1245 (10th Cir. 2005) (quoting Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999)); see also Colorado Outfitters Ass'n v. Hickenlooper, 823 F.3d 537, 542, 544 n.5, 555 (10th Cir. 2016) (remanding case to district court to dismiss for lack of jurisdiction where district court proceeded to assess the merits of a case based on “some generous assumptions” about jurisdiction, and emphasizing that a ruling based on incorrect assumptions about jurisdiction “is no ruling at all”). Plaintiffs bear the burden of establishing that the court has jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Both the Grand Junction and Mesa County Defendants have raised the issue of Younger abstention, which the United States Court of Appeals for the Tenth Circuit routinely has characterized as a jurisdictional doctrine. D.L. v. Unified School Dist. No. 497, 392 F.3d 1223, 1228-29 (10th Cir. 2004); Peters v. United States, No. 24-1013, 2024 WL 3086003, at *1 n.1 (10th Cir. June 21, 2024) (assuming that “Rule 12(b)(1) is a proper vehicle for a Younger abstention motion”). And so this court begins its jurisdictional analysis by determining whether Younger compels this court to abstain from considering any or all of Plaintiffs' claims on the merits.
A. Claims Barred by Younger Abstention
1. Legal Framework
Federal Rule of Civil Procedure 12(b)(1) . Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quotingMaestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)). The court may review materials outside Plaintiffs' Complaint without converting the instant Motions to Dismiss to motions for summary judgment. Davis ex rel. Davis v. United States, 343 F.3d 1282, 1296 (10th Cir. 2003). Here, in arguing that abstention is required under Younger, the Motions to Dismiss reference the dockets from the ongoing state criminal proceedings against Plaintiffs, see ECF No. 40 at 10-11, ECF No. 70 at 11-13, and, as previously noted, this court also is authorized to take judicial notice of the filings in the state criminal proceedings and of its own docket.
Younger Abstention Requirements and Exceptions . The Younger abstention doctrine reflects a “longstanding public policy against federal court interference with state court proceedings[.]” Younger, 401 U.S. at 43. This policy is based “on notions of comity and federalism, which require that federal courts respect state functions and the independent operation of state legal systems.” Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997) (“Phelps II'). The doctrine dictates that “a federal court must abstain from deciding a case otherwise within the scope of its jurisdiction in certain instances in which the prospect of undue interference with state proceedings counsels against federal relief.” Graff v. Aberdeen Enterprizes, II, Inc., 65 F.4th 500, 522 (10th Cir. 2023) (cleaned up).
Pursuant to Younger, federal courts generally must refrain from enjoining pending, parallel state criminal proceedings, see Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013), where three requirements are met:
(1) there is an ongoing state criminal, civil, or administrative proceeding, (2) the state court provides an adequate forum to hear the claims raised in the federal complaint, and (3) the state proceedings involve important state interests, matters which traditionally look to state law for their resolution or implicate separately articulated state policies.Winn v. Cook, 945 F.3d 1253, 1258 (10th Cir. 2019) (quoting Chapman v. Oklahoma, 472 F.3d 747, 749 (10th Cir. 2006)). The doctrine applies equally to federal suits seeking declaratory and monetary relief, both of which could “have preclusive effects on a pending state-court proceeding.” D.L., 392 F.3d at 1228 (recognizing that “a plaintiff who seeks only monetary damages could, once a money judgment is obtained, seek the additional relief of an injunction and could argue in state court that the federal judgment has preclusive effect”).
There are limited exceptions to Younger abstention. Federal courts are permitted to enjoin a pending state criminal prosecution only if the prosecution was “(1) commenced in bad faith or to harass; (2) based on a flagrantly and patently unconstitutional statute; or (3) related to any other such extraordinary circumstance creating a threat of ‘irreparable injury' both great and immediate.” Winn, 945 F.3d at 1258-59 (quoting Phelps v. Hamilton, 59 F.3d 1058, 1063-64 (10th Cir. 1995) (“Phelps I”)). But the “twin rationales of respecting prosecutorial discretion and federalism” dictate that “the exceptions to Younger only provide for a ‘very narrow gate for federal intervention.'” Phelps 1, 59 F.3d at 1064 (quoting Arkebauer v. Kiley, 985 F.2d 1351, 1358 (7th Cir. 1993)).
2. Application of Younger to Plaintiffs' Claims
Scrutinizing the record here pursuant to this legal framework, the court finds that all three requirements for Younger abstention are satisfied and that the “very narrow gate” for federal intervention has not been opened here-precluding this court from entertaining Plaintiffs' claims against the non-federal Defendants.
“Younger abstention does not apply to claims against the United States.” Peters v. United States, No. 23-cv-03014-NYW-SKC, 2024 WL 83333, at *9 n.17 (D. Colo. Jan. 8, 2024), aff'd, No. 24-1013, 2024 WL 3086003 (10th Cir. June 21, 2024). However, as explained below, dismissal of the claims is required because of separate legal flaws.
First, there is no doubt that the state criminal proceedings against Plaintiffs are ongoing. Furthermore, as to the second Younger requirement, the state court criminal actions provide an adequate forum for Plaintiffs to litigate their constitutional claims, before or during a trial or by means of a direct appeal (or other post-conviction remedies) should they be convicted on one or more of the pending charges. Goings v. Sumner Cnty. Dist. Attorney's Office, 571 Fed.Appx. 634, 638 (10th Cir. 2014) (“The focus for this prong of Younger is whether the claims could have been raised in the pending state proceedings.”) (quoting J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1292 (10th Cir. 1999) (cleaned up, emphasis in original); see also Capps v. Sullivan, 13 F.3d 350, 354 n. 2 (10th Cir. 1993) (“[F]ederal courts should abstain from the exercise of . . . jurisdiction if the issues raised . . . may be resolved either by trial on the merits in state court or by other state procedures available to the petitioner.”) (quotation omitted). Nothing in the record here suggests any reason to question the Colorado state court's ability to provide Plaintiffs “with an adequate forum to litigate any constitutional claims [they] may have by way of pretrial proceedings, trial, and if [they are] convicted, direct appeal and post-conviction proceedings.” See Jones v. Douglas Cnty. Jail, 859 Fed.Appx. 333, 335-36 (10th Cir. 2021) (finding that “the proper course is for [petitioner] to first litigate his constitutional claims in the Kansas state courts”). The third Younger condition is unmistakably satisfied as well. The State of Colorado “has a vital interest in prosecuting individuals believed to have committed crimes against other persons”-including the suspected drug crimes with which Plaintiffs are charged. See Goings, 571 Fed.Appx. at 638; see also Aid for Women v. Foulston, 441 F.3d 1101, 1119 (10th Cir. 2006) (recognizing the “strong interest” of states in enforcing their criminal laws).
Nor does the record here allow this court to conclude that Plaintiffs' claims fall within the extremely limited exceptions to Younger. There being no statute at issue here, the court focuses on the exceptions for a prosecution brought in bad faith or to harass or implicating “extraordinary circumstances,” Winn, 945 F.3d at 1258-59, and finds that neither exception applies.
In considering whether a prosecution was commenced in bad faith, this court evaluates whether the prosecution was “(1) frivolous or undertaken with no reasonably objective hope of success, (2) motivated by the defendant's suspect class or in retaliation for the defendant's exercise of constitutional rights, and (3) conducted in such a way as to constitute harassment and an abuse of prosecutorial discretion, typically through the unjustified and oppressive use of multiple prosecutions.” Phelps 1, 59 F.3d at 1065 (cleaned up). When it comes to asserting bad faith in the face of Younger, a plaintiff “has a heavy burden of proof in order to overcome the bar of Younger abstention. Under Younger, intervention cannot be predicated on mere allegations; rather, the federal plaintiff must prove bad faith or harassment before intervention is warranted.” Id. at 1066 (emphasis in original); see also Phelps II, 122 F.3d at 888 (“According to our decision in Phelps I, . . . it is the plaintiff's ‘heavy burden' to overcome the bar of Younger abstention by setting forth more than mere allegations of bad faith or harassment.”).
The court finds that Plaintiffs have not met their heavy burden to prove bad faith or harassment in connection with the ongoing state prosecutions. To be sure, Plaintiffs disagree with the decisions to prosecute them. They assert that the Mesa County District Attorney has engaged in “perjury”; that the prosecutors lack “credibility” and have engaged in “misconduct” because the indictment is “facially deficient” and “not supported by probable cause”; and that the prosecutors have elected to charge “the worst felony possible for” what (in Plaintiffs' opinion) is actually “a misdemeanor count.” See ECF No. 73 at 17-20. But these contentions are both wholly conclusory and merely express Plaintiffs' view that their actions were benign and did not warrant prosecution. They are entitled to their opinions-and they may raise a vigorous and, perhaps, ultimately successful defense to the pending charges-but they point to no objective evidence establishing that the prosecutions are “frivolous or undertaken with no reasonably objective hope of success,” somehow “unjustified,” or an “oppressive use” of the prosecutorial process. Phelps 1, 59 F.3d at 1065. Clearly, multiple officers of the courts of Colorado have undertaken the significant task of investigating, filing, and continuing to pursue the criminal cases against Plaintiffs, and a state judicial officer declined to dismiss those charges. Moreover, satisfaction of the probable-cause standard is readily apparent from the information provided in the affidavits in support of Plaintiffs' arrests. See, e.g., Mink v. Knox, 613 F.3d 995, 1003 (10th Cir. 2010) (“The substance of all the definitions of probable cause is a reasonable ground for belief of guilt . . . . Probable cause exists if facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.”) (cleaned up).
Neither do Plaintiffs point to information sufficient to make a showing that the state prosecutions were motivated by a suspect classification or reflect a retaliatory motive toward either of them. See Phelps 1, 59 F.3d at 1065. In asserting that Judge Robison “has singled them out” and “has been borderline bias[ed] at times,” Plaintiffs claim that they “are both native Americans of federally recognized tribes,” ECF No. 73 at 3, but they identify no information in the record indicating that the state court has taken any action motivated by Plaintiffs' race or ethnicity. Indeed, the state court record evinces no hint of bias against either Plaintiff.
Instead, Judge Robison's orders reflect a careful and dispassionate analysis of the legal issues in the face of direct attacks on her and other manipulative behavior by Plaintiffs. See, e.g., 2/1/2024 Order re: Formal Motion Requesting Substitution of Judge, at 2, Case No. 2021CR917 (observing that, “[o]n January 27, 2023, the Defendant sent flowers to the Court along with a two-page letter that thanked the Court ‘for your services to our community and the people and their lives that you effect.' The Court entered an Order declining the flowers and notifying defense counsel that they needed to pick up the flowers immediately.”).
Finally, Plaintiffs point to no factually-supported, non-conclusory allegations that would permit this court to conclude there are circumstances here of such extraordinary magnitude as to pose a great and immediate threat of irreparable injury to them. Phelps 1, 59 F.3d at 1065. The mere fact of the ongoing prosecutions is not such a threat, lest every criminal case would suffice to allow federal courts to intrude upon state criminal proceedings. To the contrary, it is well-established that the obligation to defend against underlying criminal prosecutions establishes no injury of sufficient magnitude to overcome Younger. Cf. Winn, 945 F.3d at 1259 (“[A]n error by the state court does not create an irreparable injury simply because the defendant must proceed through the tainted trial before obtaining relief-relief that may well entail a second trial.”). Notably, too, Plaintiffs have not been incarcerated since the two days following their arrests on June 22, 2021, further negating any claim that they will be irreparably injured if this court abstains from intruding upon the state court's authority to adjudicate the criminal prosecutions. Put simply, there is nothing in the record here permitting this court to find that Plaintiffs have made the requisite showing of bad faith, harassment, or other unusual circumstances sufficient to meet their heavy burden to overcome the bar of Younger abstention.
This court therefore RECOMMENDS that all of Plaintiffs' claims, whether brought against the non-federal Defendants in their official or individual capacities, be dismissed without prejudice under the Younger abstention doctrine. Goings, 571 Fed.Appx. at 639 (“Under our precedent, Younger-abstention dismissals have been treated as roughly akin to jurisdictional dismissals and, accordingly, have been considered to be without prejudice.”) (citation omitted, emphasis in original). This court further RECOMMENDS that all claims against those non-federal Defendants who have not been served or entered an appearance in this matter-including those not identified by name in the Complaint-also be dismissed without prejudice. It is clear that Younger abstention equally would deprive this court of subject-matter jurisdiction over those claims. See Andrews v. Heaton, 483 F.3d 1070, 1074 n.2 (10th Cir. 2007) (“A district court may dismiss a case sua sponte under Federal Rule Civil Procedure 12(b) ‘when it is patently obvious that the plaintiff could not prevail on the facts alleged.'”) (quotingMcKinney v. State of Okla., Dept. of Human Servs., 925 F.2d 363, 365 (10th Cir. 1991) (citing Baker v. Dir., U.S. Parole Comm'n, 916 F.2d 725, 727 (D.C. Cir. 1990); Huxall v. First State Bank, 842 F.2d 249, 249 n.2 (10th Cir. 1988)); see also Garrett v. Washington Cnty., No. 11-CV-223-GKF-FHM, 2011 WL 1897186, at *2 (N.D. Okla. May 18, 2011) (stating, in dismissing sua sponte a claim jurisdictionally-barred by the Rooker-Feldman doctrine, “it is patently obvious that this claim could not prevail in federal court”).
For the reasons set forth in the Motions to Dismiss, Defendants may have compelling arguments for dismissal of these claims with prejudice under Rule 12(b)(6). Nevertheless, the court cannot reach arguments which seek a dismissal on the merits without first concluding that it has jurisdiction over those claims. Because this court finds that jurisdiction is lacking, it must recommend dismissal without prejudice. See, e.g., Goings, 571 Fed.Appx. at 639; Graff, 65 F.4th at 523 n.32.
There is no provision in the Federal Rules of Civil Procedure for naming fictitious or anonymous parties. United States ex rel. Little v. Triumph Gear Sys., Inc., 870 F.3d 1242, 1249 (10th Cir. 2017) (“The Federal Rules of Civil Procedure ‘make no provision for suits by persons using fictitious names or for anonymous plaintiffs.'”) (quoting Nat'l Commodity & Barter Ass'n, Nat'l Commodity Exch. v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989) (per curiam)); Fed.R.Civ.P. 10(a) (“The title of the complaint must name all the parties[.]”); see also Pedro v. Smith, No. 11-cv-02746-CBS, 2012 WL 4442805, at *6 (D. Colo. Sept. 26, 2012) (same) (citing Watson v. Unipress, Inc., 733 F.2d 1386, 1388 (10th Cir. 1984); Coe v. U.S. Dist. Court for Dist. of Colo., 676 F.2d 411, 415 (10th Cir. 1982)). Certainly there is no prejudice to Plaintiffs in dismissing these unnamed parties without prejudice, and judicial efficiency is promoted by the expeditious resolution of these patently non-viable claims. See Fed.R.Civ.P. 1 (Federal Rules of Civil Procedure “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”).
B. Conditions-of-Confinement Claims
In making the foregoing recommendation, the court recognizes the existence of a narrow subset of claims that may fall outside the Younger bar: any claim that could be construed as challenging the conditions of confinement imposed during Plaintiffs' two-day confinement in the Mesa County Detention Facility on June 22 and 23, 2021. See Complaint at 10, 13 (asserting that, during their two-day confinement, Plaintiffs were denied water for a 24-hour period, given “sedated food” and drink, and received no medical evaluations, and that Plaintiff Holly Smith's “necessary medical devices” were taken away, forcing “her to put weight on her freshly injured knees for two days”). Arguably, even these claims might be sufficiently intertwined with the pending criminal cases to fall within the parameters of Younger abstention. The United States District Judge assigned to this case may so find. However, with due regard for the liberality with which the pleadings of pro se litigants must be construed, the court proceeds to explain its conclusion that any such conditions-of-confinement claims-whether construed as raised pursuant to § 1983 or under various state-law tort theories-are subject to dismissal for the separate reasons that follow.
Here, too, the Motions to Dismiss point to even more grounds for dismissing the conditions-of-confinement claims, including failure to state a plausible claim for relief, but the reasons articulated here are sufficient for this court to recommend dismissal of those claims.
1. Section 1983 Claims
To begin with any § 1983 claims challenging Plaintiffs' conditions of confinement- including any possible Monell municipal-liability claims-it is apparent from the face of the Complaint that these claims were filed outside the applicable statute of limitations, as the Grand Junction, State, and Mesa Defendants argue in their Motions to Dismiss. ECF No. 40 at 8-10; ECF No. 41 at 6-7; ECF No. 70 at 5-6. This court agrees and recommends that these claims be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).
Under Rule 12(b)(6), the court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). 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.” BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (internal quotation marks omitted). That is, the complaint must include well-pleaded facts that, taken as true, “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
With regard to dismissal on statute-of-limitations grounds specifically, “[t]he statute of limitations is an affirmative defense that must be raised by the defendant.” Herrera v. City of Espanola, 32 F.4th 980, 991 (10th Cir. 2022) (citation omitted). But dismissal at the Rule 12(b)(6) stage based on the statute of limitations is appropriate if “allegations on the face of the complaint surrounding the date of accrual . . .‘make clear that the right sued upon has been extinguished.'” Id. (quoting Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 671 (10th Cir. 2016)). “Congress did not establish a statute of limitations or a body of tolling rules applicable to actions brought in federal court under § 1983[.]” Board of Regents v. Tomanio, 446 U.S. 478, 483 (1980), and so the court must borrow “the state law of limitations governing an analogous cause of action.” Id. at 483-84. In most § 1983 actions, “a state statute of limitations and the coordinate tolling rules” are “binding rules of law.” Id. at 484.
The statute of limitations for a § 1983 claim under Colorado law, including any municipal-liability claim, is two years. Colo. Rev. Stat. §§ 13-80-102(1)(g), (i) (establishing a two-year limitation period for “[a]ll actions upon liability created by a federal statute where no period of limitation is provided in said federal statute” and for “all other actions of every kind for which no other period of limitation is provided”); Blake v. Dickason, 997 F.2d 749, 750-51 (10th Cir. 1993) (applying § 13-80-102 to § 1983 claim); Estate of Goodwin v. Connell, 376 F.Supp.3d 1133, 1150 (D. Colo. 2019) (applying two-year statute of limitations applicable to § 1983 claims to municipal-liability claim). “Although state law determines the applicable statute of limitations period, federal law governs the particular point in time at which a claim accrues.” Kripp v. Luton, 466 F.3d 1171, 1175 (10th Cir. 2006). Under federal law, a § 1983 claim accrues “when the plaintiff knows or has reason to know of the injury which is the basis of his action.” Id. (cleaned up).
Plaintiffs were arrested on June 22, 2021, and were held in the Mesa County Detention Facility on June 22 and June 23, 2021. Complaint at 10-13. It therefore is apparent that Plaintiffs knew of the allegedly unconstitutional conditions of confinement in that facility-including any conduct purportedly amounting to deliberate indifference to their medical needs-on June 23, 2021, at the latest. They did not file this lawsuit until July 10, 2023, rendering any claims stemming from their confinement time-barred. Nor have Plaintiffs pleaded any facts plausibly suggesting any grounds for tolling the statute of limitations; the well-pleaded facts permit no inference that Plaintiffs failed to “‘timely file their claims because of ‘extraordinary circumstances' or because defendants' wrongful conduct prevented them from doing so.'” Garcia v. Yniquez, No. 21-cv-01117-LTB-GPG, 2022 WL 451624, at *2 (D. Colo. Feb. 2, 2022), aff'd, No. 22-1041, 2022 WL 2734636 (10th Cir. July 14, 2022) (quotingMorrison v. Goff, 91 P.3d 1050, 1053 (Colo. 2004)). This record confirms that allowing Plaintiffs to file yet a fifth amended pleading would be futile.
In sum, if the Article III judicial officer assigned to this case finds that Younger abstention does not apply to Plaintiffs' § 1983 claims challenging the conditions during their two-day confinement, this court alternatively RECOMMENDS that those time-barred claims be dismissed with prejudice. See Sanchez v. City of Littleton, 491 F.Supp.3d 904, 913 (D. Colo. 2020) (“If a claim is untimely under the statute of limitations it [will] be dismissed with prejudice.”) (citations omitted); see also McGowan v. Wal-Mart Stores, 757 Fed.Appx. 786, 788 n.3 (10th Cir. 2019)) (“A dismissal based on timeliness would ordinarily be with prejudice.”); Gee v. Pacheco, 627 F.3d 1178, 1195 (10th Cir. 2010) (affirming dismissal with prejudice of claims barred by the statute of limitations).
2. State-Law Tort Claims
To the extent Plaintiffs seek to bring any state tort claim (such as negligence) tied to their complaints about the conditions they faced during their two-day confinement in June 2021, see Complaint at 13, any such claim is similarly time-barred. See Colo. Rev. Stat. § 13-80-102(1)(a) (“Tort actions, including but not limited to actions for negligence, trespass, malicious abuse of process, malicious prosecution, outrageous conduct, interference with relationships, and tortious breach of contract” “must be commenced within two years after the cause of action accrues[.]”). However, the court must first address another jurisdictional deficit, independent of Younger abstention, that obliges this court to recommend dismissal of any state tort claim challenging Plaintiffs' conditions of confinement at the Mesa County Detention Facility.
Plaintiffs do not allege, nor have they otherwise shown, that they have complied with the mandatory notice provision of the CGIA, including their obligation to give notice in writing within 182 days after the date of the discovery of the injury. See Colo. Rev. Stat. § 24-10-109(1). Compliance with the CGIA's notice provision is a “jurisdictional prerequisite” for any tort claims or claims against a public employee that “could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant.” Id.; see also Colo. Rev. Stat. §§ 24-10-118(1), (1)(a). “Colorado courts consistently hold that a plaintiff must plead compliance with the CGIA's notice provisions in the complaint to avoid dismissal.” Aspen Orthopaedics & Sports Med., LLC v. Aspen Valley Hosp. Dist., 353 F.3d 832, 840 (10th Cir. 2003) (collecting cases) (emphasis added), abrogated on other grounds by Martinez v. Estate of Bleck, 379 P.3d 315 (Colo. 2016); see also Tafoya v. Limon Corr. Facility, No. 20-cv-0768-WJM-NRN, 2020 WL 6565230, at *3 (D. Colo. Nov. 9, 2020) (“[A] claimant must allege in his or her complaint that the claimant has complied with the jurisdictional prerequisite of filing of a notice of claim.”) (quoting Kratzer v. Colo. Intergovernmental Risk Share Agency, 18 P.3d 766, 769 (Colo.App. 2000)). And, as relevant here, “[t]he statutory notice provisions of the CGIA apply when federal courts hear Colorado tort claims under supplemental jurisdiction.” Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003).
The defendants against whom Plaintiffs' conditions-of-confinement claims are aimed are “public employees” within the meaning of the CGIA, see Colo. Rev. Stat. § 24-10-103(4)(a), and their claims challenging the supposed conditions at the detention facility, liberally construed, encompass claims that are torts or “lie in tort”-including a common law negligence claim. Complaint at 13 (asserting “no adequate medical attention and negligence”). Yet, the Complaint alleges no facts plausibly suggesting that Plaintiffs complied with the statutory notice provision as to any of the public entities and public employees they name as defendants. “When a plaintiff fails to plead compliance with the CGIA, and a court addresses the case in the context of a motion to dismiss, the court must accept as a matter of ‘fact' that the plaintiff failed to comply with the notice provisions.” Aspen Orthopaedics, 353 F.3d at 840.
Beyond this pleading defect, the Mesa County Defendants have submitted a declaration from a Mesa County Sheriff's Office official-as is proper in connection with a Rule 12(b)(1) attack on subject-matter jurisdiction-attesting that a search of records maintained by the Sheriff's Office and the Detention Facility revealed no 182-day notice from Plaintiffs. Smith Decl., ECF No. 70-1 ¶ 5. Plaintiffs do not dispute this sworn testimony. Instead, they assert that they “gave as much notice as they could,” and discuss the Prison Litigation Reform Act, see ECF No. 79 at 9, 16, but the PLRA does not apply here because Plaintiffs were not incarcerated at the time of filing suit. They submit an email that an entity called “Smith Services” appears to have received from the Colorado Attorney General's Office, see id. at 3-6, but that document does not establish that Plaintiffs gave proper notice under the CGIA. See Colo. Rev. Stat. § 24-10-109(2) (delineating specific requirements for notice under the CGIA). Indeed, the document does not even include the email that “Smith Services” sent to the Attorney General's Office, depriving this court of reviewing its contents. Neither does the response to the email (from the “Pattern-and-Practice Unit”) reference the CGIA. ECF No. 79 at 3-6. In any event, the Attorney General is not the proper recipient of a CGIA notice regarding Plaintiffs' objections to their confinement at the Mesa County Detention Facility, which was required to “be filed with the governing body of the public entity or the attorney representing the public entity . . . by registered or certified mail, return receipt requested, or [by] personal service.” See Colo. Rev. Stat. § 24-10-109(3)(a).
“The notice shall contain the following: (a) The name and address of the claimant and the name and address of his attorney, if any; (b) A concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the act, omission, or event complained of; (c) The name and address of any public employee involved, if known; (d) A concise statement of the nature and the extent of the injury claimed to have been suffered; (e) A statement of the amount of monetary damages that is being requested.” Colo. Rev. Stat. § 24-10-109(2).
In conclusion, Plaintiffs having failed to allege in their complaint, or to otherwise demonstrate, that they “complied with the jurisdictional prerequisite of filing of a notice of claim,” see Tafoya, 2020 WL 6565230, at *3, all of Plaintiffs' state-law tort claims challenging their conditions of confinement in the Mesa County Detention Facility on June 22 and 23, 2021, must be dismissed for lack of subject-matter jurisdiction. The court RECOMMENDS that all such claims-against those Defendants who have been served and those who have not been served-be dismissed without prejudice. See Aspen Orthopedics, 353 F.3d at 842.
II. Claims Against the Federal Defendants
Plaintiffs have named as defendants the FBI and the DEA and, presumably, some federal agents also are included in the group of defendants identified as “25 other agents, unknown identities or positions.” Complaint at 2. None of these federal Defendants have been served or entered an appearance in this matter. Nevertheless, because it is “patently obvious that [Plaintiffs] could not prevail on the facts alleged against any of the federal Defendants, see Andrews, 483 F.3d at 1074 n.2, the court exercises its authority to sua sponte recommend the dismissal of these non-viable claims for the reasons that follow.
As an initial matter, it is somewhat difficult to discern precisely what claims Plaintiffs are attempting to bring against these named and unnamed federal Defendants. While this court is under no obligation to “construct arguments or theories for [Plaintiffs] in the absence of any discussion of those issues,” see Drake, 927 F.2d at 1159, the undersigned nevertheless has carefully combed their pleading and concludes that any claims against these federal agencies and officials stem from their alleged roles in the multi-jurisdictional raid on the compound where Plaintiffs were arrested on June 22, 2021. A liberal construction of Plaintiffs' pleading further leads the court to conclude that Plaintiffs purport to bring constitutional claims against the federal Defendants that likely sound in excessive force or false arrest. See Complaint at 9, 19. Furthermore, given that the non-monetary relief Plaintiffs seek-chiefly, that the state criminal charges against them be dropped, id. at 8-is not relief the FBI or DEA could implement, the only reasonable inference the court may draw from the pleading is that Plaintiffs seek monetary damages from the federal Defendants.
With these generous assumptions favoring Plaintiffs as its guideposts, the court finds that all claims against the federal Defendants should be dismissed.
A. Claims Against the FBI and DEA: Barred by Sovereign Immunity
Taking first the claims against the FBI and the DEA, the court begins by acknowledging the long-established legal principle that, “[a]bsent waiver, sovereign immunity shields the Federal Government and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (citations omitted). Waivers of sovereign immunity cannot be implied; they must be express and unequivocal. Lane v. Pena, 518 U.S. 187, 192 (1996). Without a clear waiver of sovereign immunity, a court has no jurisdiction over a claim against the United States, its agencies, or its officers. United States v. Mitchell, 445 U.S. 535, 538 (1980). “It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). And while the Supreme Court has recognized an implied private action for damages against individual federal officers who are alleged to have violated a citizen's constitutional rights in certain contexts, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the United States has not waived its sovereign immunity from damages claims for alleged constitutional violations on behalf of itself and its agencies. Meyer, 510 U.S. at 485-86; id. at 484 486 (expressly declining “to expand the category of defendants against whom Bivens-type actions may be brought to include not only federal agents but federal agencies as well”) (emphasis in original); Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002) (Bivens action may not be brought against federal agencies or agents acting in their official capacities) (citingMeyer, 510 U.S. at 483-86); Dahn v. United States, 127 F.3d 1249, 1254 (10th Cir. 1997) (“The United States and its agencies are not subject to suit under Bivens.”) (citingMeyer, 510 U.S. at 484-85; Hartje v. FTC, 106 F.3d 1406, 1408 (8th Cir. 1997)).
As this Supreme Court and Tenth Circuit precedent confirms, there is no direct action for damages against federal agencies. Because the United States has not waived its sovereign immunity from suit, subject-matter jurisdiction is lacking for Plaintiffs' claims against the FBI and the DEA. The court therefore RECOMMENDS that all such claims be dismissed without prejudice. See, e.g., Rural Water Sewer & Solid Waste Mgmt., Dist. No. 1 v. City of Guthrie, 654 F.3d 1058, 1069 n.9 (10th Cir. 2011) (dismissal on sovereign immunity grounds must be without prejudice) (citations omitted).
B. Claims Against Individual Federal Officers: Time-Barred
Similarly lacking in viability are any Bivens claims Plaintiffs seek to bring against the unidentified individual federal officers involved in the raid during which Plaintiffs were arrested. See Complaint at 9. It is apparent from the face of the Complaint that several threshold defects foreclose these claims.
The court observes that these Bivens claims are almost certainly not judicially cognizable, given recent decisions from the Supreme Court and Tenth Circuit circumscribing Bivens to the point of virtual extinction. In assessing whether a Bivens remedy should be recognized, “[a] court faces only one question: whether there is any rational reason (even one) to think that Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to proceed.'” Egbert v. Boule, 596 U.S. 482, 496 (2022) (quoting Ziglar v. Abbasi, 582 U.S. 129, 136 (2017) (emphasis in original)); see also Logsdon v. U.S. Marshal Serv., 91 F.4th 1352, 1355 (10th Cir. 2024), petition for rehr'g denied (10th Cir. Apr. 5, 2024) (adopting this test). “And if the only question is whether a court is ‘better equipped' than Congress to weigh the value of a new cause of action, surely the right answer will always be no.” Egbert, 596 U.S. at 504 (Gorsuch, J., concurring in the judgment) (emphasis added). This court harbors strong doubts that the answer here would be different. Indeed, since Egbert, the Tenth Circuit has declined to extend Bivens to a claim against Deputy United States Marshals who were alleged to have used excessive force in carrying out an arrest. Logsdon, 91 F.4th at 1356 (no Bivens remedy where Deputy Marshals allegedly “secretly approached [the arrestee] after dark” and “ran up behind him and kicked him in the face, rendering him unconscious”).
Nevertheless, this court recognizes that the question of whether to recognize a Bivens claim in a particular scenario requires a two-step analysis that hinges on facts which the federal Defendants (who have not appeared in this matter) are uniquely positioned to present. See Egbert, 596 U.S. at 492 (recognizing a two-step analysis in deciding whether to recognize a proposed Bivens claim: “First, we ask whether the case presents a new Bivens context-i.e., is it meaningfully different from the three cases in which the Court has implied a damages action. Second, if a claim arises in a new context, a Bivens remedy is unavailable if there are ‘special factors' indicating that the Judiciary is at least arguably less equipped than Congress to weigh the costs and benefits of allowing a damages action to proceed.”) (cleaned up). With regard to the special-factors analysis in particular, this court would anticipate hearing from Defendants concerning their articulation of considerations that may be uniquely applicable to the instant situation. Cf. Logsdon, 91 F.4th at 1358 (“Of particular relevance here is a duty of the USMS that was not a factor considered in Bivens. The USMS is statutorily required to partner with state and local law-enforcement authorities to create Fugitive Apprehension Task Forces, which are directed and coordinated by the USMS.”) (citing 34 U.S.C. § 41503(a)). This court cannot anticipate all “special factors” that may be in play here, prior to the appearance of any federal Defendant. Such an analysis is better conducted on a fuller record than that available to the court at this stage of the proceedings.
Regardless, this court need not decide at this juncture whether Plaintiffs' allegations may allow them to wedge their claims into the exceedingly small box that now holds all viable Bivens claims. Proceeding on the assumption, however improbable, that Plaintiffs could raise claims for monetary relief against individual federal officers under these circumstances, it is readily discernible from the face of Plaintiffs' Complaint that-like Plaintiffs' § 1983 claims-any Bivens claims could not proceed because they are time-barred.
The Tenth Circuit has expressly held that “a Bivens action, like an action brought pursuant to 42 U.S.C. § 1983, is subject to the statute of limitations of the general personal injury statute in the state where the action arose.” Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994) (citation omitted). Plaintiffs' Bivens claims thus are governed by the residual two-year statute of limitations for all actions set forth in Colorado Revised Statute § 13-80-102. Appleby-El v. Catron, 84 Fed.Appx. 9, 10 (10th Cir. 2003) (Bivens claims are subject to a two-year statute of limitations) (citing Indus. Constructors, 15 F.3d at 968, and Colo. Rev. Stat. § 13-80-102)); accord, e.g., Garrett v. Fleming, 362 F.3d 692, 695 n.4 (10th Cir. 2004). As discussed above in connection with Plaintiffs' § 1983 claims, the accrual date of a civil rights action like this one is controlled by federal law, which provides that “[a] civil rights action accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998) (quoting Baker v. Board of Regents, 991 F.2d 628, 632 (10th Cir. 1993)); see also Kripp, 466 F.3d at 1175 (same). “A plaintiff has reason to know of his injury when he should have discovered it through the exercise of reasonable diligence.” Indus. Constructors, 15 F.3d at 969 (citing State of Ohio v. Peterson, Lowry, Rall, Barber & Ross, 651 F.2d 687, 692 (10th Cir. 1981)). And “[a] plaintiff need not know the full extent of his injuries before the statute of limitations begins to run.” Id. (citing Gustavson v. United States, 655 F.2d 1034, 1036 (10th Cir. 1981); Robbins v. United States, 624 F.2d 971, 973 (10th Cir. 1980)).
Here, the well-pleaded facts demonstrate that Plaintiffs' cause of action against federal law enforcement officers accrued no later than June 22, 2021, upon the execution of the arrests that allegedly violated Plaintiffs' constitutional rights. No grounds for tolling the two-year statute of limitations may be inferred from Plaintiff's allegations, where they affirmatively state that they knew, “at 5:45 AM” on June 22, 2021, that “DEA, FBI under cover[]” officers “stormed [Plaintiffs'] place militant style, with many guns and excessive force and chemical weapons,” Complaint at 9, and they have alleged no other facts plausibly suggesting the existence of extraordinary circumstances or interference with their ability to file this lawsuit. See Garcia, 2022 WL 451624, at *2. Therefore, the latest date on which Plaintiffs could have filed their Bivens claims was June 22, 2023, two years after the date of the arrests allegedly carried out in violation of their constitutional rights.
Because the filing of the instant case on July 10, 2023, exceeded the two-year statute of limitations for Bivens claims, this court RECOMMENDS that all Bivens claims against federal law enforcement officers challenging their involvement in the June 22, 2021 arrests of Plaintiffs be dismissed with prejudice. See, e.g., Sanchez, 491 F.Supp.3d at 913.
With this, the court has recommended that all claims in this matter, against all Defendants, be dismissed. While this recommendation in no way seeks to criticize Plaintiffs' intensely-held view that they are innocent of the underlying criminal charges, the court deems it appropriate to emphasize to them-respectfully, but emphatically-that the working out of the question of their guilt or innocence is not the business of this court.
CONCLUSION
For the reasons stated herein, this court requests that this matter be DRAWN to an Article III judicial officer, to whom this court respectfully RECOMMENDS that the case be dismissed in its entirety.
Specifically, this court recommends that the Motions to Dismiss (ECF Nos. 40, 41, and 70) be granted and, further, that all claims against all non-federal Defendants be dismissed without prejudice as barred by the Younger abstention doctrine. Alternatively, the conditions-of-confinement claims against all non-federal Defendants may be dismissed with prejudice as time-barred (42 U.S.C. § 1983 claims) or dismissed without prejudice for lack of subjectmatter jurisdiction for failure to comply with the Colorado Governmental Immunity Act (statelaw tort claims).
This court further RECOMMENDS that all claims against the Federal Bureau of Investigation and the United States Drug Enforcement Agency be dismissed without prejudice for lack of subject-matter jurisdiction, and that all claims against any unidentified federal officer Defendant be dismissed with prejudice as time-barred.
Accordingly, it is hereby ORDERED that Plaintiffs' Motion to Request Judges Instruction (ECF No. 81) and Plaintiffs' Motion to Request District Attorney to Produce 55000 Page Discovery to This Court (ECF No. 82) are DENIED AS MOOT.
Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after service of a Magistrate Judge order or recommendation, any party may serve and file written objections with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1)(A), (B); Fed.R.Civ.P. 72(a), (b). Failure to make any such objection will result in a waiver of the right to appeal the Magistrate Judge order or recommendation. See Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).