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Wodiuk v. Pueblo County Sheriff's Department Officer Graziano

United States District Court, D. Colorado

June 6, 2017

HEIDI WODIUK, Plaintiff,
PUEBLO COUNTY SHERIFF'S DEPARTMENT OFFICER CAITLIN GRAZIANO, in her individual and official capacity. Defendant.



         This matter comes before the court on the following motions: (1) Plaintiff Heidi Wodiuk's “Motion for Appointment of Counsel in a Criminal Case” (doc. #197), filed on February 9, 2017; (2) Defendant Caitlin Graziano's[1] “Motion to Dismiss for Failure to Prosecute” (doc. #201), filed on February 23, 2017; and (3) Plaintiff Wodiuk's “Motion for: Contempt of Court Ex Parte Crimes to be Motioned in Reporting to FBI, the U.S. Judicial Discipline Board and the United States President Donald Trump Today for the Prohibited Crimes Done in Ex Parte” (doc. #208), filed on May 18, 2017. None of these motions, to date, has generated a response from the opposing party. However, given the unusual posture of this case and the issues raised in the pending motions, the court will address them all at this time.


         I. Plaintiff's Motion for Appointment of Counsel in a Criminal Case

         Ms. Wodiuk prefaces her motion by stating that she is “a defendant in this case” and “currently not represented by counsel.” The motion specifically requests “appointment of counsel in a criminal case” and insists that Ms. Wodiuk cannot “proceed with the defense in this case without the assistance of counsel.” As Ms. Wodiuk is the plaintiff in this action, I presume she is referring to her pending criminal action in Pueblo County District Court, People of the State of Colorado v. Heidi Marie Wodiuk, Case No. 2015CR001287 (hereinafter, the “criminal case”).[2] Ms. Wodiuk argues that she is financially eligible “for the appointment of counsel from the Criminal Justice Act (CJA) Panel, 18 U.S.C. § 3006A(a)(1)(C)-(E), ” and “need[s] federal counsel for Pueblo trial court” because of “federal subject matter case tried outside its jurisdiction.” This motion is denied for the following reasons.

         Based upon my review of the publically available docket sheet for the Pueblo County District Court criminal case, it appears that Ms. Wodiuk has court-appointed counsel.[3] The Pueblo County District Court appointed Michael Lee Garcia, Esq. to serve as Ms. Wodiuk's alternate defense counsel on December 7, 2016. See Colo. Rev. Stat. § 21-2-101(1) (stating that an alternate defense counsel “shall provide legal representation in circumstances in which the state public defender has a conflict of interest in providing legal representation”).[4] I also note that Ms. Wodiuk filed a “Notice of: Case 15 CR1287 Status” (doc. #199) with this court on February 15, 2017, in which she specifically referenced her “attorney Michael Garcia.”[5]

         Moreover, I can find no legal support for the proposition that Ms. Wodiuk, as a state criminal defendant, is entitled to appointment of counsel under the federal Criminal Justice Act. That statute specifically directs federal district courts to implement a plan “for furnishing representation for any person financially unable to obtain adequate representation.” 18 U.S.C. § 3006A(a) (emphasis added). That qualifying language seemingly excludes Ms. Wodiuk, given that she already has the benefit of court-appointed counsel in her criminal case. I am at a loss to understand how or why this court should use limited federally appropriated funds to provide a court-appointed counsel for a state criminal case in which the presiding judicial officer has taken steps to safeguard Ms. Wodiuk's Sixth Amendment rights. Cf. United States v. Alberte, No. 2:08-cr-0190-GEB, 2009 WL 720876, at *2 (E.D. Cal. Mar. 17, 2009) (holding that Congress did not intend for federal CJA resources to be used to pay a federally-appointed lawyer to provide legal representation in a state court proceeding that was unrelated to a pending federal criminal action).

         In essence, Ms. Wodiuk asks this federal court to inject itself into a pending state criminal action. As Senior Judge Lewis T. Babcock explained to Ms. Wodiuk on August 16, 2016, in an Order of Dismissal (doc. #37) filed in Wodiuk v. People of Colorado, Civil Action No. 16-cv-00983-LTB, “[a]bsent extraordinary or special circumstances, federal courts are prohibited from interfering with ongoing state criminal proceedings.” See Younger v. Harris, 401 U.S. 37 (1971); Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997). Senior Judge Babcock also noted in his Order of Dismissal Supreme Court precedent “recogniz[ing] that the States' interest in administering their criminal justice systems free from federal interference is one of the most powerful of the considerations that should influence a court considering equitable types of relief.” See Kelly v. Robinson, 479 U.S. 36, 49 (1986) (citing Younger, 401 U.S. at 44-45). I find that Ms. Wodiuk's motion is neither factually nor legally tenable and will deny the motion on that basis.[6]

         II. Defendant's Motion to Dismiss for Failure to Prosecute

         Defendant Graziano argues that this civil action should be dismissed pursuant to Fed.R.Civ.P. 41(b). Ms. Graziano insists that dismissal is appropriate because Ms. Wodiuk “has taken no substantive steps toward resolution of this case since” her original attorney withdrew in October 2015, even as she continues to “file irrelevant and meaningless documents with this Court.” In sum, Defendant's motion contends that “Plaintiff's lack of relevant action has reached a degree where dismissal is an appropriate action by this Court.” Ms. Graziano also asserts that if allowed to “re-depose the Plaintiff and . . . conduct Fed.R.Civ.P. 35 examinations of the Plaintiff, ” she “may file a Motion for Summary Judgment, based upon questions of qualified immunity which will then be resolved by this Court.” To date, Ms. Wodiuk has not filed a response to this motion.[7]

         Rule 41(b) states that “[i]f [a] plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” A dismissal under Rule 41(b) “operates as an adjudication on the merits” “unless the dismissal order states otherwise.” Given that potential consequence, “[d]ismissing a suit with prejudice for failure to prosecute is a ‘severe sanction' and should be a measure of last resort.” Sun v. CFS2, Inc., No. 16-CV-0236-CVE-TLW, 2017 WL 374473, at *1 (N.D. Okl. Jan. 25, 2017) (“dismissal is warranted when ‘the aggravating factors outweigh the judicial system's strong predisposition to resolve cases on their merits'”) (citing Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007) and Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)).

         A. Procedural History

         It cannot be reasonably disputed that this case has proceeded slowly and remains administratively closed in the wake of orders I entered on June 23, and December 6, 2016. See doc. #157 and doc. #194. However, Defendant's suggestion that Ms. Wodiuk has failed to diligently pursue her civil action must be considered in a fuller factual context. The parties are certainly familiar with the protracted procedural history of this case, but a brief chronological history is warranted.

         Ms. Wodiuk commenced this action on October 28, 2014 with the filing of a Complaint pursuant to 42 U.S.C. § 1983. The Complaint alleges generally that “[o]n July 22, 2012, in the parking lot of Kohl's Department Store on Elizabeth Street in Pueblo, Colorado, Officer Graziano attempted to take Wodiuk into custody on a mental health hold.”[8] See Complaint, at ¶ 8. The Complaint asserts two claims under the Fourth Amendment: first, that Officer Grazianio “conducted an unreasonable search and seizure of Wodiuk's person, ” and second, that she used excessive force by “pulling Wodiuk out of her car, kneeing her in the back, and otherwise using a significant degree of force on a person who was not resisting in any way.” Id. at ¶¶ 16 and 24. When this lawsuit was filed on October 24, 2014, Ms. Wodiuk was represented by Anthony J. Viorst, Esq.

         During a Fed.R.Civ.P. 16 scheduling conference on February 4, 2015, I adopted the pretrial deadlines proposed by the parties, and set a discovery cutoff date of November 1, 2015 and a dispositive motion deadline of December 1, 2015. The court also set a deadline of April 1, 2015 for moving to join parties or amend the pleadings. The court directed the parties to designate affirmative experts pursuant to Fed. R. Civ. 26(a)(2) on or before September 3, 2015, and designate rebuttal experts pursuant to Rule 26(a)(2) on or before October 22, 2015. Those expert disclosures dates were proposed by the parties.

         Following the February 4, 2015 scheduling conference, the parties proceeded with discovery. Plaintiff's counsel deposed Defendant Graziano on June 4, 2015. See doc. #62. That deposition lasted for 62 minutes and concluded with plaintiff's counsel's stating that he had “nothing further.” Ms. Wodiuk also was deposed on June 4, 2015, in a session that began at 9:00 am and concluded at 2:22 pm.[9] During her deposition, defense counsel asked Ms. Wodiuk to “[t]ell me what happened” in the parking lot of the Kohl's Department Store.[10] Plaintiff provided a lengthy account of that day's events without invoking her Fifth Amendment right against self-incrimination. The latter point is significant. During the same deposition, when defense counsel asked about rental properties that are owned by Ms. Wodiuk and also include Michael Franti[11] on the deeds, Plaintiff responded that she was “not at liberty to discuss any of those matters at this time.” Mr. Viorst alluded to “[s]ome criminal investigation” regarding Mr. Franti's relationship to those properties, but conceded that he was not exactly certain what “investigation is going on.” For that reason, counsel stated that Ms. Wodiuk was invoking her Fifth Amendment rights as to”any further questions on Michael Franti or any of those ownership interests.”[12]

         On September 16, 2015, Mr. Viorst moved to withdraw from this case, citing “irreconcilable differences” with his client. See Motion to Withdraw as Counsel for Plaintiff (doc. #19). Ms. Wodiuk opposed that motion (see doc. #26) on the grounds that her counsel should not be allowed to withdraw because he “has not done his obligations to factually investigate before filing this case and must do his due process obligations before . . . withdrawing.” In a lengthy “Notice: Plaintiff, Notice to Notify the U.S. District Court of Attorney Failure to Comply with Federal Court Laws” (doc. #27), filed on October 6, 2015, Plaintiff explained that her counsel had “failed his attorney obligations and rather deceived the plaintiff that [he] did his investigation.” Plaintiff further stated that the mental health hold underlying her arrest by Officer Graziano was related to “the grand treason to kidnapping (sic) of Dr. Wodiuk's daughter in [state case] 2007DR1166.” Ms. Wodiuk asked that “the courts in this case investigate [her counsel's] misconduct and also report his actions and involvement to federal agents at FBI who can investigate.”

         During a hearing on October 8, 2015, Ms. Wodiuk agreed with this court that her professional relationship with Mr. Viorst had deteriorated to the point that counsel should be allowed to withdraw. In approving Mr. Viorst's request to withdraw, the court also granted Ms. Wodiuk's request for additional time to find replacement counsel, but warned that she would remain responsible for her case unless or until a new attorney entered an appearance. See Courtroom Minutes/Minutes Order (doc. #29). The court set a further telephone status conference for November 10, 2015 and stayed all discovery pending that status conference.

         Mr. Viorst's motion and subsequent withdrawal as Ms. Wodiuk's counsel did not bring discovery to a complete halt.[13] On October 14, 2015, notwithstanding the stay entered by this court, Ms. Wodiuk moved for a “Rule 35 Physical and Emotional Evaluation . . . On Defendant Caitlyn Graziano-Hudson” (doc. #31), which was followed by Defendant's October 28, 2015 “Motion for Medical Examinations Pursuant to Fed.R.Civ.P. 35" (doc. #47). On October 28, 2015, Ms. Wodiuk filed amended Fed. R. Civ. 26(a)(2) disclosures. See doc. #45.

         Even as this action was proceeding, albeit in fits and starts, Ms. Wodiuk's legal situation became more complicated. Three days after Ms. Wodiuk was deposed on June 4, 2015, she was named as the defendant in People of the State of Colorado v. Heidi Marie Wodiuk, Pueblo County District Court, Case No. 2015CR001287. The felony complaint in that case charged Ms. Wodiuk with ten violations of Colo. Rev. Stat. § 18-5-902(1)(c) [identity theft], nine violations of Colo. Rev. Stat. § 18-5-102(1)(c) [forgery], and two violations of Colo. Rev. Stat. § 18-3-602(1)(c) [stalking]. The identity theft charges generally allege that Ms. Wodiuk “unlawfully, feloniously, and with the intent to defraud, falsely made, completed, altered, or uttered a written instrument or financial device containing personal identifying information or financial identifying information of Michael Franti.” The forgery counts assert that Ms. Wodiuk

with the intent to defraud Michael Franti, unlawfully, feloniously, and falsely made, completed, altered, or uttered a written instrument which was or which purported to be, or which was calculated to become or to represent if completed, a deed, will, codicil, contract, assignment, commercial instrument, promissory note, or other instrument which document did or may have evidenced, created, transferred, terminated or otherwise affected

         various quitclaim deeds. Finally, the stalking claims allege that Ms. Wodiuk unlawfully, feloniously and knowingly made a credible threat to Michael Franti and “repeatedly followed, approached, contacted, placed under surveillance, or made any form of communication with, Michael Franti, in a manner that . . . caused Michael Franti serious emotional distress.” See Ms. Wodiuk's “Petition for Writ of Certiorari for Trial Court Case 15CR1287 in Pueblo Colorado, ” (doc. #1, at pages 22-35 of 35), in Dr. Heidi Wodiuk v. People of Colorado, Civil Action No. 17-cv-00475-LTB.[14] Trial in Ms. Wodiuk's criminal case originally was set to commence on March 6, 2017.

         Neither side moved to stay this civil action after the criminal case commenced in Pueblo County District Court, but Ms. Graziano's counsel acknowledged during a hearing on October 8, 2015 that Ms. Wodiuk's alleged relationship with Mr. Franti is “kind of background, if you will, to this case.” Perhaps that explains why, on October 14, 2015, Ms. Wodiuk filed a pro se “Motion for Plaintiff Amendment 5 Rights to be Honored and Protected in This Case for Plaintiff Due Process Rights to a Fair Trial in Case 15CR1287" (doc. #32). In this submission, Ms. Wodiuk asserted that she was facing a “groundless, meretricious, criminal case 15CR1287 in Pueblo Colorado” and asked this court to “honor and protect [her] right to plee (sic) the fifth amendment when being questioned anything about case 15CR1287.”

         As noted previously, Mr. Glantz entered his appearance on behalf of Ms. Wodiuk on April 19, 2016. His ability to effectively represent his client was, unfortunately, complicated from the outset of the engagement. On March 11, 2016, the Pueblo County District Court entered in the criminal case an “Order Finding Defendant Incompetent to Proceed and Committing Defendant for In-Patient Restoration to Competency.” See Exhibit A (doc. #152-1) attached to Plaintiff's “Motion for Appointment of Guardian Ad Litem.” In its Order, the Pueblo County District Court found “pursuant to Section 16-8.5-111, C.R.S., that [Ms. Wodiuk] is ‘incompetent to proceed”[15] and committed Ms. Wodiuk to the “care and custody of the Colorado Department of Human Services (“CDHS”) for treatment directed toward restoring competency.” Id. On June 1, 2016, the Pueblo County District Court renewed its earlier findings in a second “Order Finding Defendant Incompetent to Proceed, and Committing Defendant for In-Patient Restoration to Competency.” See Exhibit B (doc. #152-2) attached to Plaintiff's “Motion for Appointment of Guardian Ad Litem.”

         In view of the foregoing competency orders, Mr. Glanz filed a “Status Report” (doc. # 153) on June 17, 2016, as well as a contemporaneous “Motion for Appointment of Guardian Ad Litem” (doc. #152). In moving for the appointment of a guardian ad litem, Mr. Glanz advised that

The finding of incompetency renders Plaintiff unable to confer and agree to the withdrawal of the numerous pending motions as recommended by counsel. The finding of incompetency makes it impossible [for] the Plaintiff to continue with the present civil proceeding without the appointment of a guardian ad litem.

See Motion for Appointment of Guardian Ad Litem, at 2-3.

         This court held a telephone status conference with counsel for the parties on June 23, 2016. At that conference, Mr. Glanz informed the court that Ms. Wodiuk was still in the custody of the Colorado Mental Health Institute at Pueblo (“CMHIP”) which substantially impaired his ability to confer with his client. Mr. Glanz also informed the court that a guardian ad litem had been appointed for Ms. Wodiuk by the Pueblo County District Court in a then-pending civil lawsuit. After some discussion with the court, Mr. Glanz agreed that there was little to be gained by this court appointing a separate guardian ad litem, and indicated that he would consider asking the Pueblo County District Court to expand the authority of the state-appointed guardian ad litem. Based on that colloquy, this court denied without prejudice Plaintiff's “Motion to Appoint Guardian Ad Litem.”[16] In anticipation of a further mental health evaluation by CMHIP due on August 18, 2016, this court administratively closed this action pending further developments in the criminal case. However, the court qualified that decision with the following observations:

         I want to be very, very respectful of Ms. Wodiuk's rights; I want to make certain

that her rights in this case are fully protected. But I have to be just as scrupulous in my desire to ensure that Defendant's rights are protected. . . . But at some point, as a simple matter of fairness, we can't have this case hanging over the Defendant in perpetuity.

         Again, Mr. Glanz was forced to withdraw from this case on September 15, 2016 for medical reasons.

         The Pueblo County District Court's docket in the criminal case indicates that on August 4, 2016, the court lifted the mental health stay as to Ms. Wodiuk. One week later, the Pueblo County District Court in Pueblo Conservancy Dist. v. Pueblo West Metropolitan District, Case No. 1967CV17664, entered an Order Terminating Appointment of Guardian ad Litem. In that Order, the court noted:

Respondent Heidi Wodiuk appeared in person, in custody, on August 11, 2016. She requested that the appointment of the Guardian ad Litem be terminated. The court notes that the appointment was made due to the finding of incompetence to proceed in a criminal matter. Respondent was found to be competent to proceed by the judicial officer in her criminal case on August 4, 2016, based on the report from the Colorado Mental Health Institute at Pueblo. Therefore the Court agrees that the appointment of the Guardian ad Litem should be terminated and it is hereby ordered.

See Exhibit A (doc. #162-1) attached to Plaintiff's Status Report.

         At my direction, Defendant Graziano filed her “Response to Court's Request for Discovery Status” (doc. #192) on December 1, 2016. In that filing, defense counsel advised that

Defendant believes that the only discovery remaining to be conducted if the case is re-opened would be the continued deposition of Plaintiff and, possibly, a physical and a mental health evaluation of Plaintiff pursuant to Fed.R.Civ.P. 35. The necessity of these examinations depends in large part on Plaintiff's testimony during her renewed deposition. This discovery could be completed fairly quickly, but would depend on Plaintiff's availability to complete her deposition and, potentially, undergo two medical examinations. However, it is possible that Plaintiff's deposition could eliminate the present need for the two medical examinations.

         Ms. Wodiuk filed her own “Status Report” (doc. #193) on December 2, 2016. That report stated:

1. Dr. Heidi Wodiuk has reviewed the 15CR1287 case and it appears that there is NO case by color of law and constitution stipulates for a prosecution requirement and criteria to be met first before probable cause can be met. Therefore, it is in the best interest of both parties to wait for Dr. Wodiuk's 5th ...

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