United States District Court, D. Colorado
ALFONSO A. CARRILLO, Plaintiffs,
JOHN W. SUTTERS, Colorado Attorney General, in his official capacity as elected Colorado Attorney General, RICK RAEMISCH, in his individual and official capacities, BOBBY BONNER, in his individual and official capacities, MITCHELL MORRISSEY, in his individual and official capacity as Second Judicial District Attorney, MORRIS B. HOFFMAN, Judge, in his official and representative capacities, PHIL GEIGLE, in his individual and representative capacities, DARRYL SHOCKLEY, in his individual and representative capacities, DANIEL CHUN, in his individual and representative capacity as Denver D.A. detective, BRAD UYAMURA, in his individual and representative capacity as Denver D.A. detective, FRANK THOMAS, Sheriff, in his individual and official capacities, GARY WILSON, in his individual and official capacities, ELIAS DIGGINS, in his individual and official capacities, DENVER SHERIFF DEPARTMENT, in its official capacity, DOUGLAS K. WILSON, in his individual and official capacities, ELIZABETH PORTER-MERRILL, in her individual and official capacities, NICHOLAS SARWAK, in his individual and official capacities, DOUGLAS N. DARR, in his individual and official capacities, CAROL CHAMBERS, in her individual and official capacities as 18th Judicial District Attorney, GEORGE H. BRAUCHLER, in his individual and official capacities as 18th Judicial District Attorney, TED MINK, in his individual and official capacities as elected Jefferson County Sheriff, Defendants.
RAYMOND P. MOORE, District Judge.
Plaintiff, a prisoner proceeding pro se, has sued numerous Colorado state employees, including several state sheriffs, district attorneys and detectives, and the public defenders assigned to represent him alleging numerous constitutional violations under the Civil Rights Act and various other violations of law. This matter is before the Court on the December 29, 2014 Recommendation of United States Magistrate Judge Michael E. Hegarty (the "Recommendation, " ECF No. 381), which addresses five distinct motions to dismiss filed by various clusters of defendants. (ECF Nos. 356, 358, 361, 362, 363.) Magistrate Judge Hegarty recommended that all Defendants in this action be dismissed and that Plaintiff be denied leave to file a second amended complaint. Plaintiff timely filed objections to the Recommendation (ECF Nos. 382, 383) and also filed a motion to strike the Recommendation (ECF No. 385) and another motion seeking this Court's review of the Recommendation under a de novo standard. (ECF No. 411, 412.) For the reasons explained below, the Court rules that the Recommendation is ADOPTED and incorporated herein by reference, see 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b), and all of Plaintiff's claims are dismissed as against all Defendants. Plaintiff's Objections to the Recommendation are OVERRULED and Plaintiff's motion to strike the Recommendation and motion for de novo review of the Recommendation are both DENIED.
This action initially began on August 3, 2012 when Plaintiff Alfonso Carillo ("Plaintiff") and 60 other plaintiffs, proceeding pro se, filed a Complaint (ECF No. 1) alleging generally that: "(1) changes were made to Colorado laws governing foreclosure proceedings, (2) the changes made it easier to foreclose on properties,  the changes were made both illegally and improperly, (4) Plaintiffs have sought to challenge foreclosures affecting them under the new law, and (5) Defendants have attempted to intimidate Plaintiffs or retaliate against them for resisting foreclosure by a wide range of conduct, including having one or more Plaintiffs arrested and charged in criminal court with violations of law." (ECF No. 324, at 3.) After U.S. District Court Judge Martinez dismissed 27 of the original plaintiffs for failing to appear and prosecute the action ( see ECF Nos. 45, 72, 160) and after various defendants filed motions to dismiss (ECF Nos. 85, 102, 109, 135, 142, 144, 145, 156) this Court issued an order on May 14, 2014 adopting Magistrate Judge Hegarty's recommendation (ECF No. 218), dismissing all of Plaintiffs' claims and granting leave to file an amended complaint. (ECF No. 324.)
After receiving several extensions, Plaintiff filed the First Amended Verified Complaint on August 20, 2014 on behalf of only himself. (ECF No. 342, the "Amended Complaint.") As with the initial Complaint, the Amended Complaint is difficult to summarize with precision due to its vague and meandering nature. Essentially, Plaintiff alleges that various state actors worked in conjunction with one another to retaliate against and prohibit Plaintiff from operating his business, America's Home Retention Services, Inc., in violation of his Constitutional rights. Plaintiff alleges that he operated this business to provide services as real estate consultant, civil rights advocate and fair housing coordinator to mainly Hispanic customers to retain, defend, protect and acquire real property and to oppose allegedly fraudulent and discriminatory mortgage loans. Plaintiff alleges that the following actions were taken by the Defendants and others to interrupt this business: James Wilder, an attorney who represented many of Plaintiff's customers in defending against foreclosure actions was allegedly pressured by "State" Defendants to stop taking cases from Plaintiff's clients; various banks, and the attorneys who represented those banks in foreclosure actions, persuaded the State Defendants to prosecute and stop Plaintiff from challenging allegedly "false, robo-signed ownership papers"; several state sheriffs seized various properties throughout the state including those of Plaintiff's clients; various criminal actions and one civil action was commenced against Plaintiff where evidence was withheld; Plaintiff was "savagely" beaten by a "hit man" for refusing to accept a plea bargain; and Plaintiff was provided with ineffective assistance of his defense counsel, resulting in civil penalties and Plaintiff's improper incarceration. The Amended Complaint alleges claims for violations of the First, Fourth, Fifth, Sixth, Seventh, Eighth and Fourteenth Amendments to the U.S. Constitution. Plaintiff also challenges the constitutionality of Colo. Rev. Stat. § 38-38-101, et seq. on the grounds that this statute, by allowing banks to foreclose on properties without producing original evidence of a note, allegedly prohibits homeowners from raising constitutional claims or other defenses against foreclosure. Plaintiff also asserts a claim for a violation of the Fair Housing Act (FHA), 42 U.S.C. §3617, against all "State" Defendants. Plaintiff also purports to challenge "the unconstitutional application and enforcement of multiple state rules, civil and criminal statutes, " the list of which is "too long to list or explain."
In response to the Amended Complaint, five separate motions to dismiss were filed by various clusters of Defendants arguing generally that Plaintiff's claims should all be dismissed pursuant to Rules 8, 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
Judge Hegarty's Recommendation found that all of the motions to dismiss should be granted and that Plaintiff's Amended Complaint should be dismissed as to all Defendants. First, the Magistrate Judge found that Defendants Suthers, Brauchler, Chambers, Geigle and Morrissey could invoke Eleventh Amendment immunity to the extent they are sued in their official capacities. Kailey v. Ritter, 500 F.Appx. 766, 660 (10th Cir. 2012) ("[T]he Eleventh amendment precludes a federal court from assessing damages against state officials sued in their official capacities because such suits are in essence suits against the state.") (quoting Hunt v. Bennett, 17 F.3d 1263, 1267 (10th Cir. 1994)). Judge Hegarty thus recommended that all official-capacity claims against these defendants be dismissed, with the exception of one claim against Suthers regarding Plaintiff's constitutional challenge of Colo. Rev. Stat. § 38-38-101, et seq. as that claim sought prospective enforcement of Plaintiff's federal rights. Ex parte Young, 209 U.S. 123, 159-60 (1908); Buchwald v. Univ. of New Mexico Sch. of Med., 159 F.3d 487, 495 (10th Cir. 1998). As to that claim, the Magistrate Judge recommended that it be dismissed on the grounds that Plaintiff lacked standing to challenge the statute, as he did not allege to have been criminally prosecuted under the statute, nor does Plaintiff allege that any of his properties were foreclosed upon by use of this statute.
The Magistrate Judge also found that District Attorneys Brauchler, Chambers, Geigle and Morrissey (collectively, the "D.A. Defendants") could assert the defense of prosecutorial immunity to certain of Plaintiff's claims brought against them in their individual capacities, thus recommending that those claims be dismissed. However, the Magistrate Judge found that the D.A. Defendants could not assert prosecutorial immunity with respect to Plaintiff's claim that these Defendants had pressured attorney James Wilder to stop representing Plaintiff's clients in 2010 because this action would not occur in the normal course of their role as an advocate for the State. Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993). Instead, the Magistrate Judge recommended that this claim be dismissed as against the D.A. Defendants on the grounds that it would be barred by the statute of limitations. Judge Hegarty also recommended dismissal of certain claims against the D.A. Defendants on the grounds that they would imply the invalidity of his criminal conviction. See Skinner v. Switzer, 562 U.S. 521 (2011) (holding that Brady claims call into question the validity of a plaintiff's convictions and thus, pursuant to Heck, are outside the province of § 1983); Heck v. Humphrey, 512 U.S. 477, 478 (1994).
As to Plaintiff's claims against the Denver Sheriff Department and against the three "Sherriff Defendants" in their official capacities-Darr, Frank and Mink-the Magistrate Judge found that claims against these Defendants failed, and recommended their dismissal, on the grounds that Plaintiff had not alleged any practice or conduct by these Defendants that could be construed as a municipal policy or custom. Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989)).
The Magistrate Judge also recommended that claims against the Sheriff Defendants and Detective Daniel Chun in their individual capacities should be dismissed based on their assertion of qualified immunity. Analyzing the first factor in the qualified immunity analysis-whether the defendant had violated a plaintiff's constitutional right-the Magistrate Judge determined that Plaintiff had not sufficiently alleged any Constitutional violations. Specifically, as to Plaintiff's First Amendment claim, the Magistrate Judge found the Amended Complaint failed to state sufficient allegations under Federal Rule of Civil Procedure 8 to support a claim for violations of the right to freedom of religion and right to assemble; that the Amended Complaint failed to state a claim for a violation of Plaintiff's right to free speech or expression; and that the Amended Complaint failed to state a claim for violation of Plaintiff's right to petition the government. The Magistrate Judge found that Plaintiff's Fourth Amendment claim-based on allegations that he was improperly incarcerated by the Sherriff Defendants-would be barred by Heck, 512 U.S. at 478, as an impermissible collateral attack on his conviction. As to Plaintiff's Fourteenth Amendment claims (and Fifth Amendment claims, which apply by application of the Fourteenth Amendment), the Magistrate Judge found this claim insufficient under Federal Rule of Civil Procedure 8 and also that it would be barred by Heck.
With respect to Plaintiff's challenge of "state statutes for prosecution" the "list" of which is "too long to list or explain, " the Magistrate Judge recommended that this claim be dismissed on the grounds that it was not sufficiently pleaded under Federal Rule of Civil Procedure 8 because it fails to identify a single statute under which Plaintiff was prosecuted and thus fails to give Defendants proper notice.
Judge Hegarty recommended dismissing Plaintiff's FHA claim on the grounds that Plaintiff had not sufficiently alleged the elements of an action under that Act, specifically that he failed to allege that any Defendants' conduct was motivated by Plaintiff's or his clients' race or that any Defendants' conduct "constituted coercion, intimidation, a threat, or interference on account of" Plaintiff having "aided or encouraged others in exercising" a protected right. Zhu v. Countrywide Realty Co., Inc., 165 F.Supp.2d 1181, 1196 (D. Kan. 2001) (citations omitted).
The following Defendants were not served with the Amended Complaint: Raemisch, Bonner, Hoffman, Shockley, Uyamura, Gary Wilson, Diggins, Douglas Wilson, Porter-Merrill and Sarwak. Noting that Plaintiff had not been granted permission to proceed in forma pauperis, the Magistrate Judge found that Plaintiff was responsible for serving his amended pleading pursuant to Federal Rule of Civil Procedure 4(m) and recommended dismissing these Defendants without prejudice.
Having dismissed all of Plaintiff's claims against all Defendants for the reasons described above, the Magistrate Judge further recommended that Plaintiff be denied leave to file a second amended complaint, reasoning that the Court had already granted Plaintiff leave to amend his complaint once, that Plaintiff appears to be familiar with the applicable legal concepts, has a firm grasp of the facts and issues in this case and mentions nothing ...