United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION
FOR LEAVE TO FILE THIRD AMENDED COMPLAINT (DKT. #85)
Reid Neureiter United States Magistrate Judge
matter is before the Court on the Plaintiff's Motion for
Leave to File Third Amended Complaint (Dkt. #85), referred to
me by Judge William J. Martinez on July 10, 2019. (Dkt. #86.)
Defendant filed a Response in Opposition to Plaintiff's
Motion to Amend Complaint (Dkt. #88), Plaintiff submitted a
reply (Dkt. #90), and the Court heard argument from the
parties at a hearing on August 5, 2019. (Dkt. #91.) The
motion is ripe for review. Having reviewed the entire case
file and being sufficiently advised, the Court
RECOMMENDS that the Motion be
Summary of the Case
Enrique Parra, Jr., is a pretrial detainee at the Chaffee
County Jail in Salida, Colorado. Mr. Parra initiated this
action by filing pro se a Prisoner Complaint (Dkt. #1)
claiming his constitutional rights were violated while he was
in the custody of the Alamosa County Sheriff's
Department. On April 26, 2018, Magistrate Judge Gordon P.
Gallagher ordered Mr. Parra to file an amended complaint that
clarifies his claims. (Dkt. #8.) On May 17, 2018, Mr. Parra
filed an amended Prisoner Complaint asserting claims against
Mr. Stambaugh for sexual harassment and sexual assault, and
five other defendants claiming that they failed to take
action to enforce federal and state law after Mr. Parra
complained of the sexual harassment and sexual assault. (Dkt.
#11.) Senior Judge Lewis T. Babcock dismissed Mr. Parra's
claims against the five other defendants (Dkt. #13), and the
case was assigned to Judge William J. Martinez on August 10,
2018. (Dkt. #25.) Mr. Parra filed a motion seeking pro bono
counsel (Dkt. #19), and this Court granted that motion on
October 9, 2018. (Dkt. #40.) Pro Bono counsel for Mr. Parra
entered their appearance on December 21, 2018 (Dkt. #60) and
submitted a Second Amended Complaint and Jury Demand on
February 25, 2019. (Dkt. #72.)
Second Amended Complaint, Mr. Parra alleges he was sexually
harassed and sexually assaulted by Keith Stambaugh, an
Alamosa County deputy sheriff, in September 2017, and that
after Mr. Parra complained to prison officers about the
assault, Mr. Stambaugh, along with other officers, retaliated
against Mr. Parra by causing groundless criminal complaints
against Mr. Parra.
thereafter, Mr. Parra was transferred to the Chaffee County
Detention Center, where he complained again about Mr.
Stambaugh's sexual assault. According to Mr. Parra,
Detective Sam Coffman was assigned by the Alamosa County
Sherriff's Office ("ACSO") to investigate Mr.
Parra's claims, but, according to Mr. Parra, Detective
Coffman failed to do a legitimate investigation and instead
"turned the screws" on Mr. Parra by filing an
arrest warrant seeking charges for three felonies and one
misdemeanor against Mr. Parra on March 14, 2018. Two of the
charges were dropped by the Alamosa County District Court for
want of probable cause, and Mr. Parra was acquitted of the
remaining two charges after a three-day jury trial in
December, 2018. On February 26, 2019, Counsel for Mr. Parra
sent a letter to the ACSO's office and Board of County
Commissioners notifying them of Mr. Parra's claim against
Detective Coffman. (Dkt. #85-2.)
proposed Third Amended Complaint, Mr. Parra seeks to add a
single claim under Colorado state law for malicious
prosecution against Detective Coffman. Mr. Stambaugh objects,
arguing that the Court lacks jurisdiction for three reasons.
First, Mr. Stambaugh argues that Mr. Parra's claim is
barred by the Colorado Governmental Immunity Act
("CGIA") because Mr. Parra fails to allege he
timely filed a required written notice of claim. Second, Mr.
Stambaugh argues that Mr. Parra failed to allege sufficient
facts to support his claim that Detective Coffman acted
"willfully and wantonly" as required by the CGIA to
maintain a tort claim against a public employee. See
Colo. Rev. Stat. §§ 24-10-118(2)(a) &
24-10-110(5)(a). Third, Mr. Stambaugh argues that the Court
lacks supplemental jurisdiction. Because the Court finds that
Mr. Parra did not timely submit a notice of his claim under
the CGIA, the Court need not address the second and third
arguments made by Mr. Stambaugh.
the CGIA, an injured person seeking damages from a public
entity or employee must provide written notice of the claim
within 182 days of discovery of the injury. Colo. Rev. Stat.
§ 24-10-109(1). The failure to comply with the 182-day
period is an absolute jurisdictional bar to suit. Mesa
Cty. Valley Sch. Dist. No. 51 v. Kelsey, 8 P.3d 1200,
1206 (Colo. 2000). "Unlike under ordinary statutes of
limitations, a plaintiff cannot invoke equitable defenses
such as waiver, tolling, or estoppel to overcome the CGIA
180-day [now 182] notice of claim provision." City
and Cty. of Denver v. Crandall, 161 P.3d 627, 633 (Colo.
2007) (en banc) (citation omitted). Further, "[t]he CGIA
is a non-claim statute that does not recognize tolling for
those occurrences that are continuous in nature."
Id. at 634 (citation omitted). The burden is on the
plaintiff to prove "jurisdictional facts adequate to
support subject matter jurisdiction." Id. at
Colorado Supreme Court has made clear that "[f]or
purposes of the CGIA, the notice period is triggered when a
claimant has only discovered that he or she has been
wrongfully injured." Gallagher v. Bd. of Trustees
for Univ. of N. Colo., 54 P.3d 386, 391 (Colo. 2002)
(internal quotation marks and citation omitted). Plaintiff
concedes that under Colorado law, "claims for malicious
prosecution accrue for purposes of filing a notice letter
under the GIA when claimants are aware that allegedly
improper charges have been filed against them."
Masters v. Castrodale, 121 P.3d 362, 364-65
(Colo.App. 2005). Plaintiff also concedes that the CGIA
182-day time period expired prior to the date the notice was
sent to Alamosa County, noting that the time period expired
before counsel for Plaintiff agreed to represent Mr. Parra.
(Dkt. #90 at 2.)
that the CGIA notice period is subject to a strict compliance
standard and that the weight of the case law militates in
favor of dismissal, Plaintiff argues that there is precedent
in Colorado to support a finding that the notice period may
commence on a later date when plaintiff is under a legal
disability. Plaintiff cites two Colorado Court of Appeals
cases, which he admits are distinguishable, to support his
argument: Visserex rel. Eder v. Mahan, 111 P.3d 575
(Colo.App. 2005) and Cintron By & Through Cintron v.
City of Colorado Springs By & Through Mem'l
Hospital, 886 P.2d 291 (Colo.App. 1994). In the
Visser case, the plaintiff was rendered unconscious
by the allegedly tortious conduct and the court held that the
notice period was not triggered until an individual was
appointed to act on the incapacitated plaintiff's behalf.
Visser, 111 P.3d at 577-78. In the Cintron
case, the plaintiff was a brain injured minor, and the court
refused to charge the plaintiff with her parent's
knowledge to find that the notice period had expired.
Cintron, 886 P.2d at 292-93.
also cites Clark v. Tinnin, 731 F.Supp 998, 1001 (D.
Colo. 1990), arguing that the court in that case left open
the possibility that the 182-day notice period could be
tolled for an incarcerated pro se plaintiff. In the
Clark case, the court granted summary judgment in
favor of the defendant, rejecting the pro se plaintiff's
argument that the 182-day notice requirement should not be
strictly construed because he was incarcerated during the
notice period, did not have meaningful access to an attorney
and was unaware of the 182-day notice requirement until after
it had expired. Id. at 1001. The plaintiff in
Clark did not support his assertions with any
factual evidence and the court accordingly ruled that it
could not accept as true the plaintiff's reasons for his
failure to timely file his notice. Mr. Parra argues that the
court's ruling in Clark suggests that the court
may have reached a different result if the plaintiff had been
able to support his assertions.
Court agrees that these cases are distinguishable from the
instant case and declines Mr. Parra's invitation to
extend an exception to the 182-day notice period to cover a
legal disability based on Mr. Parra's incarceration and
lack of counsel, which the court finds difficult to accept
given that Mr. Parra was able to file this lawsuit without
the assistance of counsel on April 12, 2018. (Dkt. #1.) In so
doing, the Court finds nothing ...