United States District Court, D. Colorado
ORDER OVERRULING OBJECTIONS TO AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ROBERT E. BLACKBURN, District Judge.
The matters before me are (1) the Recommendation of United States Magistrate Judge [#185],  filed February 20, 2014; (2) the Denver Defendants' Objections to Recommendation of United States Magistrate Judge [#186], filed March 6, 2014; (3) Plaintiff Dean Carbajal's Contemporaneous Objection to Recommendation of United States Magistrate Judge Kristen L. Mix [Doc #185] [#192], filed March 27, 2014; and (4) Plaintiff [ sic ] Victoria Carbajal and Luis Leal's Contemporaneous Objection to Recommendation of United States Magistrate Judge Kristen L. Mix [#155] [ sic ] [#193], filed March 27, 2014. I overrule all objections, approve and adopt the recommendation, and grant all apposite motions to dismiss, save as expressly provided herein.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which objections have been filed. I have considered carefully the recommendation, objections, and applicable caselaw.
Because plaintiffs are proceeding pro se, I have construed their pleadings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)). Nevertheless, as the magistrate judge aptly recognized, "[t]he general rule that pro se pleadings must be construed liberally has limits[.]" McConnell v. Cirbo, 2011 WL 1060667 at *3 (D. Colo. March 23, 2011). Plaintiffs' characterization to the contrary notwithstanding, I heartily concur with the magistrate judge's assessment that the Third Amended Complaint is dense, frequently ambiguous, rambling, and not as well-organized as its outward appearance - neatly handwritten with consecutively numbered sections and paragraphs - might suggest.
Regardless of the substantial obstacles thus posed by the byzantine nature of the operative pleading, the magistrate judge has done impressive and yeoman-like work in parsing plaintiffs' multiple claims in this lawsuit. Her recitation and analysis of the allegations underlying each claim asserted herein and the law applicable thereto is a model of thorough and conscientious lawyering. Any attempt on my part to further elucidate or analyze the issues raised by and inherent to the underlying motions would be nothing more than a festooned reiteration of what has so ably been done already, and therefore prodigal on my part.
Suffice it to say that I find and conclude that the magistrate judge has completely and accurately vetted plaintiffs' Third Amended Complaint and cogently analyzed all issues raised by and inherent to the multiple motions to dismiss that were referred to her for recommendation. I agree on all fronts with her recommendation to dismiss all claims in this lawsuit save for Mr. Carbajal's Fourteenth Amendment claim of excessive force against Deputy Sheriff Andrew Keefer in his individual capacity.
I have considered plaintiffs' objections and find that they are, in large part, imponderous and without merit. In arguing that the magistrate judge improperly recommended the dismissal of certain of their claims,  plaintiffs do little more than refer the court back to the wholly conclusory allegations of the Third Amended Complaint. Plaintiffs' further explanation of the theory of their case does not cure the absence of concrete, non-conclusory factual allegations in the Third Amended Complaint itself.
Other of plaintiffs' objections suggest that the magistrate judge did not give the pro se complaint the proper liberal construction to which it was entitled. No fair reading of the recommendation could so conclude. Indeed, although the magistrate judge did find that plaintiffs' untethered invocation of 28 U.S.C. § 1367 in certain of their claims did not viably assert state law claims for relief, she also considered the possibility that plaintiffs might have attempted to assert state law claims in the particular circumstances where such an inference was at least colorable. ( See Recommendation at 40 n.28 & 59 n.37.) Moreover, plaintiffs make no attempt to suggest how the allegations of the Third Amended Complaint otherwise could be construed to assert state law claims in any event. Likewise, they fail to inform the court how the facts alleged assert a viable claim for false arrest under the Fourth Amendment.
Plaintiffs next take pains to point out that the Eleventh Amendment does not bar claims for injunctive or prospective relief against certain defendants in their official capacities. Albeit true as a matter of law, the magistrate judge did not recommend dismissal of those claims on that basis, but rather suggested they should be dismissed because the relevant allegations of the Third Amended Complaint referred only to past, not prospective, conduct. ( See Recommendation at 19-20.) Plaintiffs point to nothing in the Third Amended Complaint to contradict this assessment, which is well supported by my own review thereof.
Plaintiffs further object that their abuse of process claims should not be barred by limitations because those claims did not accrue until Mr. Carbajal's sentencing hearing in a separate case on January 24, 2011, when he allegedly learned for the first time that defendants Melnick, Mullin, and Morrissey had "direct filed" criminal burglary charges against him "illegally." ( See Third Am. Compl. ¶¶ 21, 31, 33.) "A claim of abuse of process accrues when plaintiff learns that a criminal proceeding was filed against him." Small v. Young, 2013 WL 5862650 at *3 (D. Colo. Oct. 31, 2013). According to the Third Amended Complaint, Mr. Carbajal was charged in the burglary case in July 2010. ( See Third Am. Compl. ¶ 48.) The claim therefore accrued at that time - thus, well outside the applicable statute of limitations.
Lastly, plaintiffs insist that prosecutorial immunity is not appropriate in this case because the implicated defendants are being sued for actions taken outside their roles as advocates and officers of the court. Courts take a functional approach to the determination whether a prosecutor is entitled to absolute immunity, focusing on "the nature of the functions with which a particular official or class of officials has been lawfully entrusted." Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 542, 98 L.Ed.2d 555 (1988). Under this approach, a prosecutor generally is not absolutely immune for her actions in procuring an arrest warrant because that act "is further removed from the judicial phase of criminal proceedings than the act of a prosecutor in seeking an indictment." Burns v. Reed, 500 U.S. 478, 505, 111 S.Ct. 1934, 1949, 114 L.Ed.2d 547 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 342-43, 106 S.Ct. 1092, 1095, 1096-97, 89 L.Ed.2d 271 (1986)) (internal quotation marks omitted).
The facts alleged in this case, however, are plainly distinguishable. Plaintiffs' claim is that Ms. Melnick presented an allegedly false affidavit to secure Ms. Carbajal's and Mr. Leal's arrests for failing to appear to testify at trial. The warrants thus were issued within the context of an underlying litigation in which charges had already been filed. The decision to charge Ms. Carbajal and Mr. Leal with contempt of court and subsequently issue arrest warrants, therefore, was "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976). Accordingly, the issuance of the arrest warrants was part and parcel of Ms. Melnick's role as an officer of the court and advocate for the state in the underlying criminal prosecution. See, e.g., Light v. Haws, 472 F.3d 74, 79 (3rd Cir. 2007); Tanner v. Heise, 879 F.2d 572, 578 (9th Cir. 1989); Hamill v. Wright, 870 F.2d 1032, 1037 (5th Cir. 1989); Barr v. Abrams, 810 F.2d 358, 361-62 (2nd Cir. 1987). Prosecutorial immunity therefore is appropriate in these circumstances.
Turning to defendants' objections, I reject their suggestion that the Third Amended Complaint fails to adequately allege, in respect to the claim of excessive force against Deputy Sheriff Keefer, that Mr. Carbajal's constitutional rights were clearly established at the time of the alleged violation. The level of correspondence between the facts of this case and any relevant precedents is not as exacting as defendants suppose:
To defeat a claim of qualified immunity, plaintiffs need not point to a prior holding that the specific conduct at issue is unlawful; rather, the unlawfulness of the alleged action must have been apparent. Moreover, it is incumbent upon government officials to make ...