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Cisneros v. Kirby

United States District Court, D. Colorado

March 30, 2018

RAFAEL CISNEROS and MICHAEL ROMERO, Plaintiffs,
v.
JAY KIRBY and JOHN BRADBURN, in their individual capacities, Defendants.

          ORDER OF DISMISSAL

          Richard P. Matsch, Senior District Judge

         The 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.

         In the 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.

         The 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.

         At the 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.

         Bradburn 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.

         Criminal 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.

         The 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.

         The 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.

         The 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.]

         The report includes detailed summaries of interviews conducted in this investigation.

         A fair 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 ...


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