United States District Court, D. Colorado
ORDER OF DISMISSAL
Richard P. Matsch, Senior District Judge
plaintiffs, Rafael Cisneros and Michael Romero, and the
defendants, Jay Kirby and John Bradburn, are employees of the
Colorado Department of Corrections (“CDOC”).
Cisneros and Romero describe themselves as Hispanic citizens
of Mexican-American heritage. The defendants are white men.
The plaintiffs claim that this difference motivated the
defendants to target them for criminal prosecution-that is,
that the defendants discriminated against them because of
their race and national origin in violation of federal law.
Second Amended Complaint [Doc. 26] the plaintiffs allege
violations of 42 U.S.C. § 1981 brought through 42 U.S.C.
§ 1983 (“First Cause of Action”) plus denial
of equal protection of the law and due process protected by
the Fourteenth Amendment to the United States Constitution,
also brought through 42 U.S.C. § 1983 (“Second
Cause of Action”). An additional claim is asserted for
the tort of malicious prosecution under Colorado common law
for which supplemental jurisdiction is invoked under 28
U.S.C. § 1367.
defendants moved to dismiss the federal claims pursuant to
Federal Rule of Civil Procedure 12(b)(6) and the state claim
for lack of jurisdiction pursuant to Rule 12(b)(1). [Doc. 27;
Doc. 28.] For the reasons that follow, the plaintiffs have
failed to overcome the defendants' entitlement to
qualified immunity, requiring dismissal of the federal
claims, and the state claim is dismissed without prejudice.
times relevant to this civil action, plaintiff Romero was a
Warden at the Youthful Offender System (“YOS”)
facility in Pueblo, Colorado, and Cisneros was a Maintenance
Lieutenant at that same facility. Defendant Bradburn was an
investigator with the CDOC's Inspector General's
Office under the supervision of defendant Kirby.
was assigned to conduct a criminal investigation of Cisneros
and Romero in November 2014. He wrote a report of his
investigation in March 2015, which he sent to the District
Attorney with the approval of Kirby.
charges were filed against Cisneros and Romero for official
misconduct pursuant to C.R.S. § 18-8-404, misdemeanors
based on alleged violations of CDOC Regulation No. 1450-06.
plaintiffs first learned of these criminal charges by reading
a newspaper on December 13, 2015. Cisneros was arraigned in
January 2016, at which one count was dismissed. Romero was
arraigned on May 11, 2016. All counts against him were
dismissed by the prosecutor on September 19, 2016. Cisneros
went to trial on October 6-7, 2016, resulting in an acquittal
by jury verdict.
filed criminal charges did not contain factual allegations
explaining the conduct upon which the charges were based. It
is presumed that the District Attorney relied entirely on
Bradburn's report. The plaintiffs claim that Bradburn
knowingly or recklessly omitted from his report information
which, if included, would have vitiated probable cause for
the charges in violation of clearly established law. They
cite Stewart v. Donges, 915 F.2d 572 (10th Cir.
1990). That case held that a detective alleged to have
omitted the fact that a complaining witness in a theft case
had recanted his allegations, admitting they were fabricated,
before the affidavit for arrest was submitted would have
violated the arrestee's rights under the Fourth and
Fourteenth Amendments if that allegation proved to be true.
Bradburn report is Exhibit A submitted with his reply in
support of his motion to dismiss the Second Amended
Complaint. [Doc. 43.] It begins with the following statement
of the reason for the criminal investigation:
Information was received indicating Lt. Ralph Cisneros was
using inmates work crews to complete work for his personal
business, he was going on trips paid for by vendors, he was
coercing vendors into providing free services to Warden
Romero, and that he was using state time and equipment to
perform work for his private company.
[Id. at 2.]
report includes detailed summaries of interviews conducted in
summary is that none of them could support the rumored
allegations that Cisneros attended the Super Bowl or that
inmate labor was used to do work at Roselawn Cemetery that
was included in a contract ...