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Fey v. Washington

United States District Court, D. Colorado

April 12, 2017



          Michael E. Hegarty United States Magistrate Judge.

         Before the Court is Defendants' Motion to Dismiss [filed February 14, 2017; ECF No. 20]. The Motion is fully briefed, and the Court finds oral argument will not assist in its adjudication. Defendants' Motion argues that the Court should dismiss this case, because Defendants are entitled to either sovereign, absolute, or qualified immunity.[1] For the reasons that follow, the Court agrees with Defendants. Accordingly, the Court respectfully recommends that the District Court grant Defendants' Motion to Dismiss.


         Plaintiff initiated this lawsuit on December 16, 2016. See Compl., ECF No 1. Plaintiff's claims arise from Plaintiff's interactions with the District Attorney's (“D.A.”) Office for the Eighteenth Judicial District and an affidavit Defendant Monique B'Nai Washington filed in a prior civil case. See Am. Compl. ¶ 1, ECF No. 10. On February 14, 2017, Defendants responded to Plaintiff's Amended Complaint by filing the present Motion. See Defs.' Mot. to Dismiss, ECF No. 20.

         I. Facts

         The following are factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by Plaintiff in his Amended Complaint, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(1) pursuant to Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995) and under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         From 2013 through 2015, Plaintiff was a criminal defendant in five separate misdemeanor cases. Am. Compl. ¶ 1. Each of these cases was prosecuted by Washington-a Deputy D.A. for the Eighteenth Judicial District. Id. In January 2015, while some of the criminal cases were still pending, Plaintiff's ex-wife filed a civil complaint against Plaintiff alleging defamation.[2] Id. at ¶¶ 5, 12; Runyan v. Fey, No. 15-cv-00009-RBJ-CBS. In support of the ex-wife's motion for summary judgment on Plaintiff's counterclaims, Washington authored an affidavit, which summarized the prior criminal cases she prosecuted against Plaintiff. Am. Compl. ¶ 5; Runyan, No. 15-cv-00009-RBJ-CBS, ECF No. 61-10. By May 2015, all five criminal cases had been dismissed with prejudice. Am. Compl. ¶ 2. Additionally, the case for which Washington authored the affidavit settled in April 2016. See Id. at ¶12.

         On December 5, 2015, Plaintiff emailed Defendant George Brauchler-the D.A. for the Eighteenth Judicial District of Colorado-to discuss his concerns about the veracity of the affi davit.[3]Id. at ¶ 7. After no one at the D.A.'s Office took any action in response, Plaintiff sent another email to Brauchler requesting review of the circumstances between Plaintiff and Washington. Id. at ¶ 8. Seven hours later, Brauchler and Washington caused Defendant Rich Orman-the Senior Deputy D.A.-to give written notice to Plaintiff that he could no longer contact any member of the D.A.'s Office except by United States Mail or email directed to Orman. Id. at ¶ 9; Ex. D. to Defs.' Mot. to Dismiss, ECF No. 20-4. The notice did not include an expiration date or a method for Plaintiff to seek review. Am. Compl. ¶ 9. As of the date of the filing of the Amended Complaint, the D.A's Office has not lifted the restriction. Id. at ¶ 14.

         II. Procedural History

         Based on these factual allegations, Plaintiff filed his Amended Complaint on January 31, 2017. ECF No. 10. Plaintiff brings six claims for relief. Plaintiff's first cause of action alleges Defendants violated Plaintiff's due process rights by obstructing his access to Brauchler, his elected official. Am. Compl. 6. Plaintiff's second claim asserts Defendants conspired with one another to deprive Plaintiff of his constitutional rights. Id. at 7. The third claim seeks a declaration that the affidavit Washington filed was illegal and false. Id. at 7-8. Plaintiff's fourth cause of action appears to assert a religious discrimination claim against Washington. Id. at 8. According to Plaintiff, Washington observed Plaintiff with his rabbi, who is always dressed in orthodox Jewish clothing, and “singled out” Plaintiff based on his religion. Id. at 2, 8. Plaintiff's fifth cause of action asserts a defamation claim for the statements Washington made in her affidavit. Id. at 9. Lastly, Plaintiff asserts a claim for extreme and outrageous conduct. Id. at 9-10.

         Defendants responded to Plaintiff's Amended Complaint by filing the present Motion to Dismiss. ECF No. 20. As to Plaintiff's claims against the Eighteenth Judicial District of Colorado, Defendants assert entitlement to sovereign immunity. Id. at 3-4. Additionally, Defendants argue Plaintiff's claims against Washington are barred by absolute immunity. Id. at 4. Defendants also assert Brauchler is not a proper Defendant, because he did not personally participate in any of the alleged unconstitutional activity. Id. at 5. As to Plaintiff's remaining federal claims, the individually named Defendants claim they are entitled to qualified immunity, because the communication restriction imposed on Plaintiff does not violate Plaintiff's constitutional rights. Id. at 6-8. Finally, Defendants argue Plaintiff's state claims are barred by the Colorado Governmental Immunity Act (“CGIA”). Id. at 8-9.

         On March 13, 2017, Plaintiff filed a Response to Defendants' Motion. ECF No. 28. Plaintiff argues the alleged conduct was not part of Washington's “prosecutorial discretion or routine.” Id. at 3-4. The remainder of Plaintiff's Response does not address Defendants' immunity, but instead reasserts the allegedly unconstitutional conduct underlying Plaintiff's claims. Id. at 4-8. Defendants filed a Reply on March 27, 2017.[4] ECF No. 33. Because Defendants' Motion raises issues of sovereign, absolute, and qualified immunity, the Court stayed this case pending a determination on the present Motion. ECF No. 26.


         I. Dismissal under Fed.R.Civ.P. 12(b)(1)

         Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of subject matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Pueblo of Jemez v. United States, 790 F.3d 1143, 1151 (10th Cir. 2015) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Id. (citing Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013)). A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of fact in the complaint, without regard to mere [conclusory] allegations of jurisdiction.” Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Pueblo of Jemez, 790 F.3d at 1151. Accordingly, Plaintiff in this case bears the burden of establishing that this Court has jurisdiction to hear his claims.

         II. Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)

         “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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-80. Second, the Court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.

         Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.

         III. Dismissal of a Pro Se Plaintiff's Complaint

         A federal court must construe a pro se plaintiff's pleadings “liberally” and hold the pleadings “to a less stringent standard than formal pleadings filed by lawyers.” Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009). “[The] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Id. (citing Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997)). The Tenth Circuit interpreted this rule to mean:

[I]f the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, this interpretation is qualified in that it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Id.; see also Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (“[W]e will not supply additional facts, nor will we construct a ...

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