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Agustin v. El Paso County

United States District Court, D. Colorado

August 28, 2019

EL PASO COUNTY, FOURTH JUDICIAL DISTRICT OF COLORADO, DAN MAY, District Attorney, SHANNON GERHART, Deputy District Attorney, BILL ELDER, El Paso County Sheriff, JOE BREISTER, El Paso County Undersheriff, LISA KIRKMAN, El Paso Legal Advisor, ROBERT JAWORSKI, El Paso County Deputy Sheriff, COLORADO BUREAU OF INVESTIGATIONS, RALPH GAGLIARDI, Colorado Bureau of Investigation Agent, GEORGE BRAUCHLER, District Attorney, MARK HURLBERT, Assistant District Attorney, GRANT FEVURLY, Deputy District Attorney, THE EIGHTEENTH JUDICIAL DISTRICT OF COLORADO, and OFFICERS JOHN DOE 1-11, in their individual and official capacities, Defendants.


          Michael E. Hegarty, United States Magistrate Judge.

         This action arises out of the investigation, arrest, and prosecution of the Plaintiff Juan San Agustin Jr. (“Plaintiff”), a former inspector with the El Paso County Sheriff's Office. Plaintiff brings eleven claims for relief against the various Defendants, five pursuant to 42 U.S.C. § 1983 and six under state law, as follows:

Claim 1 § 1983 Malicious Prosecution All Individual Defendants
Claim 2 § 1983 Substantive Due Process All Individual Defendants
Claim 3 § 1983 Conspiracy All Defendants
Claim 4 § 1983 Monell Claim El Paso County (EPC)
Claim 5 § 1983 Monell Claim 4th and 18th District Attorney Offices (DAO)
Claim 6 State Law Respondeat Superior EPC, 4th and 18th DAOs, Colorado Bureau of Investigation (CBI)
Claim 7 State Law - Intentional Infliction of All Individual Defendants Emotional Distress
Claim 8 State Law - Abuse of Process May, Brauchler, Hurlbert, Fevurly, Gerhart, Elder, Breister, Jaworski, Gagliardi
Claim 9 State Law - Defamation Hurlbert
Claim 10 State Law - Defamation Kirkman, Elder, Breister, May (“Brady List”)
Claim 11 Tortious Interference with All Defendants Economic Advantage

See Am. Compl., ECF No. 50. In response, Defendants filed a “combined” motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) arguing the Court lacks jurisdiction to hear certain claims and the Plaintiff fails to plausibly state the remaining claims. For the reasons that follow, the Court will grant in part and deny in part the Defendants' motion.


         The following are relevant factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by Plaintiff in his Second 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, 1002-03 (10th Cir. 1995) and under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         From 2004 through 2008, Defendant Dan May was the Chief Deputy District Attorney for Colorado's 18th Judicial District. During his time with the 18th Judicial District, Defendant May focused considerable efforts on prosecuting members of the “Sureños Gang.” Due to his impact on the gang and its members, the Sureños put out an assassination request or “hit” on Defendant May. The Sureños recruited the “211 Crew, ” a white supremacist prison gang linked to several high-profile murders and criminal investigations in Colorado, to assassinate Defendant May.

         Sean May was a Deputy District Attorney in the 17th Judicial District, the northern neighbor of the 18th Judicial District, during the same time period that Defendant May was aggressively prosecuting the Sureños. On August 27, 2008, as Sean May was walking home through the alley behind his home in north Denver, he was shot and killed by members of the 211 Crew. The assassin mistakenly killed Deputy District Attorney Sean May instead of Defendant May. Although the gang involved in killing Sean May is known, the individual responsible for Sean May's murder has never been found.

         In early to mid-2010, a number of other white-supremacist gangs began to expand their foothold in Colorado and to challenge the 211 Crew. To demonstrate that Colorado was 211 Crew's territory, the hierarchy of the gang ordered a lower ranking member of the gang to commit a high-profile homicide of an individual who was not incarcerated within the prison system. The 211 Crew chose a low-ranking member, Evan Ebel, who had incurred a debt to the gang.

         Tom Clements, head of the Colorado Department of Corrections, became one of the targets of the 211 Crew. On March 19, 2013, Mr. Clements was assassinated at his home by Ebel, after which Ebel fled to Texas where he died in a shootout with Texas law enforcement. Shortly after Ebel's death, Texas Rangers determined Ebel had come from Colorado and Colorado law enforcement, specifically the Plaintiff and Deputy District Attorney Jeffrey Lindsey of the Fourth Judicial District, became involved with the investigation. Colorado Governor John Hickenlooper gave law enforcement use of his plane so that they were able to travel to Texas as quickly as possible to investigate Mr. Clements' death. On arriving in Texas on a second trip, Plaintiff and Lindsey were put in contact with a confidential informant, previously a member of the 211 Crew, who had information relating to the Tom Clements' homicide: high-ranking members of the 211 Crew had ordered the confidential informant to house Ebel after he arrived in Texas so that he could remain hidden until the news of Mr. Clements' murder became less widely publicized.

         At or about the same time in 2013, Defendant May (who had been elected District Attorney (“DA”) of the Fourth Judicial District) discovered that he was in fact the intended target of the 2008 assassination of Sean May. After learning this, May upgraded all security at the District Attorney's Office to include metal detectors, armed security, and bullet proof glass in the reception area. Also, when meeting with the confidential informant, Texas Ranger James Holland, at the direction of May, immediately asked the informant what he knew about the Sean May murder.

         After approximately 120 days, Plaintiff and other members of the investigation team felt they had probable cause to believe that Evan Ebel had not acted alone, and that certain high-ranking members of the 211 Crew, who were out of custody and at large in the community at the time, should be charged with the murder. Despite Plaintiff's insistence that probable cause existed to prosecute these members, May decided to remove Lindsey from the case and refused to bring charges. Plaintiff continued to advocate for the prosecution of those who conspired to murder Tom Clements, at times through the news media.

         Meanwhile, on or about August 12, 2013, Kelly Trull, who was a nurse in the El Paso County Jail, was allegedly assaulted by her boyfriend Travis Garretson, an El Paso County Deputy Sheriff. After the alleged assault, Trull went to the house of her friends, Michelle and Scott Mackey, who were also employees of the El Paso County Sheriff's Office (“EPCSO”), and they urged Trull to report the incident. At work the following day, Trull reported the assault to Wendy Habert and Defendant Undersheriff Joe Breister, who referred the matter to the Investigations Division. Defendant Detective Lisa Kaiser was assigned to the case. Garretson was arrested and his employment with the Sheriff's Office was suspended.

         Trull and Garretson continued to live together and resumed their romantic relationship. Trull did not want Garretson to lose his job, so on September 12, 2013, she went to the EPCSO and informed Detective Kaiser that she had lied when she made her statement accusing Garretson of assaulting her. When Trull arrived at the EPCSO, she was escorted to a room on the second floor of the building by Detective Kaiser for a follow-up interview. Before the interview began, Defendant Sergeant Robert Jaworski called in Defendant Deputy District Attorney (“DDA”) Shannon Gerhart and other employees of the EPCSO who all observed the interview from a nearby conference room.

         During the interview, Trull admitted to driving under the influence of alcohol and to assaulting Garretson. Trull also indicated that Garretson had acted in self-defense. At 9:49 a.m., Detective Kaiser left the interview room and met with Gerhart and EPCSO command staff to determine whether there was probable cause to arrest Trull. During this meeting, Gerhart stated there was probable cause to arrest Trull for Harassment and Driving Under the Influence. Trull was ultimately arrested and prosecuted on these charges. Plaintiff was not present for the meeting. Employee key card records obtained by Defendant Colorado Bureau of Investigation (“CBI”) show Plaintiff left the second floor of the EPCSO at 9:30 a.m., nineteen minutes before the meeting. Two minutes later his key card was swiped again, this time leaving the parking structure, and he did not return that day.

         When Defendant Bill Elder announced in 2013 that he was running for Sheriff of El Paso County, Plaintiff was alerted to the fact that Elder's internal affairs file was missing. Plaintiff was assigned to investigate what had happened to the missing file, and he worked with two detectives to attempt to locate the file. Once they became sure the file was gone, they attempted to find out who had stolen and/or destroyed the file, but were unable to solve the issue. Plaintiff did not support Elder in his 2014 campaign and, in the fall of 2014, Elder was elected El Paso County Sheriff.

         When it became clear that Elder would win the election, Plaintiff decided to transition into the private employment sector, as Elder had made statements that Plaintiff was going to be demoted and transferred out of the Investigations Division. Plaintiff was able to rapidly build a profitable business as a private investigator and expert in digital forensics, and he was often asked to testify in court.

         In 2014, DA May contacted the CBI and had the agency initiate an investigation into various allegations of wrongdoing by then El Paso County Sheriff Terry Maketa. Plaintiff was interviewed numerous times in 2014 concerning various allegations of wrongdoing by Sheriff Maketa. Part of the investigation involved the Trull arrest. Detective Kaiser told CBI agents that Gerhart was giving legal advice and when it was determined to charge Trull with Harassment and DUI, Gerhart said, “Okay, sounds good.” When asked by CBI agents if Gerhart was “calling the shots, ” Detective Kaiser agreed. The detective stated, “I know [Gerhart] observed my interview and was in the conference room discussing what [Trull] would be charged with. Gerhart, Jaworski were there, but other supervisors were there, there's always, there's gawkers, could have been anyone in there.” In a two-hour-and-twelve-minute interview conducted on September 15, 2014 by the CBI, Detective Kaiser said nothing about Plaintiff participating in the decision to arrest Trull. That same day, she stated that her direct supervisor in 2012, Sergeant Jaworski, came to her desk in the morning and informed her that Trull was coming in for a second interview, and that “the decision to arrest Trull came from her chain of command to include Gerhart [who] was present and observed the interview from the conference room.” In September 2014, the CBI concluded its investigation, finding no wrongdoing with regard to the Trull matter. Plaintiff was never a subject of the investigation, and no wrongdoing by Plaintiff was discovered during that investigation. No. arrests were made in 2014 in relation to the suspected wrongdoing of Sheriff Maketa.

         In early March 2016, Plaintiff was interviewed by Kirk Mitchell of the Denver Post. During that interview, Plaintiff expressed his opinion that the murder of Tom Clements was orchestrated by the 211 Crew and stated that he had made requests to DA May to bring criminal charges. An article titled, “New Details Emerge Three Years After Murder of Colorado Prisons' Chief, ” was published on March 16, 2016. The article related the story of Tom Clements' murder and prominently featured Plaintiff's statement regarding his urging of DA May's office to prosecute the 211 Crew hierarchy for conspiracy to murder Mr. Clements. Prior to publishing the article, Mr. Mitchell contacted DA May and Sheriff Elder for comments regarding Plaintiff's and Terry Maketa's concerns that the Tom Clements investigation was being mishandled and not properly prosecuted.

         Shortly after publication of the Denver Post article, May contacted Defendant DA George Brauchler of the 18th Judicial District seeking another investigation of former Sheriff Terry Maketa. Brauchler, at May's request, initiated another investigation and a grand jury inquiry into Maketa's conduct. Defendant Assistant District Attorney (“ADA”) Mark Hurlbert and Defendant DDA Grant Fevurly were assigned by Brauchler to perform this investigation under his supervision.

         This second investigation of Sheriff Maketa involved looking back into the Trull matter. Hurlbert and Fevurly traveled to El Paso County with CBI agents to interview Wendy Habert, Trull's supervisor at the time she initially made the report against Garretson. CBI agents also interviewed Sergeant Jaworski regarding the Trull matter; Jaworski said multiple times that he did not remember the Trull arrest meeting or who was present. Additionally, CBI agents interviewed El Paso County Sheriff's Deputy Mitch Lincoln who informed them that Plaintiff was not at the Trull interview or arrest meeting. Then, in or about late March to early April 2016, CBI agents interviewed one current and one former EPCSO deputy sheriff. In the recorded interview, CBI agents specifically asked the two sheriff's deputies why Plaintiff had given negative statements to the press in early March 2016 regarding the Clements investigation.

         In or about April 2016, Jaworski, while still employed at the EPCSO, referred to President Barack Obama as a “n----r” in front of several other deputies and members of the coroner's office. He also had referred to Plaintiff, a Pacific Islander from the Island of Guam (also known as Chamorro), as a “g--k.” Jaworski was subsequently forced to retire from the EPCSO because of his remark about President Obama. In April or May 2016, Sheriff Elder made public statements that he would have fired Jaworski if he had not retired voluntarily.

         Also in or about April 2016, May, Brauchler, Hulbert, and Fevurly caused a grand jury to be convened seeking indictments against Maketa and former Undersheriff Paula Presley, which included allegations of wrongdoing surrounding the Trull matter, among others. Plaintiff was not a target of the grand jury investigation in April 2016. Hurlbert and Fevurly were responsible for presenting evidence to the grand jury and, otherwise, for overseeing the prosecution. In April 2016, Undersheriff Breister openly stated that if Maketa, Presley, and Plaintiff “want to talk to the press just wait until this nuke drops on them.”

         The grand jury met on April 27, May 4, May 11, May 18, and May 25, 2016. Plaintiff was not mentioned in the April 27, 2016 proceedings. Detective Kaiser testified on May 4, 2016 regarding the Trull arrest meeting, stating numerous times that, during the meeting, it was DDA Gerhart who told her to charge Trull. At no time did Detective Kaiser volunteer that Plaintiff was present during the Trull arrest meeting; however, when asked by Hurlbert, she testified that “[t]here was a heavy interest in the case so I believe he was there.” Hurlbert and Fevurly were aware of Plaintiff's key card data showing he was not present at the meeting.

         During the May 11, 2016 grand jury proceeding, Gerhart testified that Sergeant Jaworski asked her to come watch the Trull interview to determine whether any charges should be brought. Gerhart testified that she watched the entire interview, but in contrast with Detective Kaiser's testimony, Gerhart testified that she did not order Trull's arrest and was “laughing” in the arrest meeting about charging Trull. May, Hurlbert, and Fevurly did not present to the grand jury Gerhart's prior statements from her March 17, 2016 tape-recorded interview with CBI Agent Martinez, during which she told the agent that she had advised individuals in the Trull arrest meeting that she believed EPCSO had probable cause to arrest Trull for Harassment and Driving Under the Influence.

         Undersheriff Breister also testified on May 11, 2016; however, although they knew that Trull's initial statements to Breister on August 13, 2013 provided probable cause for her arrest, Hurlbert and Fevurly did not ask him about the interview. In addition, Breister did not volunteer any information about that interview.

         Finally, Jaworski also testified before the grand jury on May 11, 2016 stating there was no District Attorney with whom to consult about the decision to arrest Trull and he would have rather consulted with a District Attorney but did not do so. May, Hurlbert, and Fevurly did not correct this testimony despite the fact that they had Jaworski's March 10, 2016 recorded interview with CBI Agents Shierkolk and Martinez during which Jaworski stated numerous times that he did not remember anything about the Trull interview or the Trull arrest meeting. Jaworski told the agents it was “too long ago” and he did not remember being there, let alone who else was watching the interview.

         In addition, Jaworski testified that he was at the Trull arrest meeting, Plaintiff was also there, and Plaintiff gave the order to arrest. Jaworski was retired at the time he testified before the grand jury, and May, Hurlbert, and Fevurly withheld from the grand jury that Jaworski disliked Plaintiff, had called Plaintiff many racially biased slurs, and had been forced to retire due to the comments he made about President Obama.

         On or about May 12, 2016, CBI Agent Timothy Martinez served a subpoena on the Plaintiff for his testimony before the grand jury on May 18, 2016. Plaintiff retained John Newsome to represent him in connection with the subpoena. Newsome contacted Fevurly and Hurlbert and inquired as to the purpose of the subpoena and the testimony requested of Plaintiff. Hurlbert responded and advised Newsome that Plaintiff was needed to testify regarding a false arrest scenario involving former Sheriff Maketa, and specifically that they wanted Plaintiff to testify about an order to make an arrest of a deputy's girlfriend. After consulting with Plaintiff, Newsome informed Hurlbert and Fevurly that Plaintiff had never ordered an arrest in that matter, Maketa had never ordered Plaintiff to make an arrest at any time, and Plaintiff was not a participant in any conference where it was determined that a deputy's girlfriend would be arrested. Newsome also informed Hurlbert and Fevurly that Plaintiff was willing to testify to those facts and take a polygraph; however, on May 17, 2016, Newsome was informed that Plaintiff did not need to appear on his subpoena. Hurlbert called Newsome again and informed him that there would be one or two more grand jury sessions, and stated that if Plaintiff changed his mind about what he would say to the grand jury, Plaintiff should let them know.

         On May 18, 2016, Al Harmon, EPCSO Bureau Chief and Plaintiff's former commanding officer, testified before the grand jury. Harmon testified repeatedly that he did not recall being present at the Trull interview or arrest meeting; however, when a juror advised him, “we were told the DDA, Jaworski, and [Plaintiff] agreed to arrest her, ” Harmon stated, “it sounds like Kaiser went to Jaworski, who went to San Agustin, who was there.” May, Hurlbert, and Fevurly did not clarify for the grand jury that Harmon was “guessing” and that there was evidence showing Plaintiff was not there. May, Hurlbert, and Fevurly also did not present to the grand jury Harmon's card reader data, which they received on May 19, 2016, reflecting that Harmon watched the Trull interview and was present for the entire Trull arrest meeting.

         On May 25, 2016, Defendant CBI Agent Ralph Gagliardi testified that the key card data showed Plaintiff was present during the Trull arrest meeting in Room 200b, despite the fact that the key card data showed Plaintiff had left the building and parking structure about nineteen minutes prior to the Trull arrest meeting. Gagliardi also falsely conveyed to the grand jury that there was a card reader panel outside of the conference room on the second floor, and that Plaintiff swiped his card to get into the conference room where the Trull arrest meeting took place. However, there is a card reader panel for access to the second floor but, once on the second floor, there is no additional security required to gain access to the interview and conference rooms.

         With respect to who was present in the Trull arrest meeting, Brauchler, May, Hulbert, Fevurly, Gagliardi, and Jaworski knew and presented evidence to the grand jury that the offices of the commanders, including Terry Maketa, Paula Presley, and Al Harmon, were on the fifth floor. Key card data would demonstrate whether any of the commanders left the fifth floor to go to the second floor during the Trull interview and/or arrest meeting. However, during the May 25, 2016 grand jury proceeding, at which Gagliardi was asked who else was in Room 200, he responded, “there's a few others that we have heard that we've [sic] been named or been talked about here, we asked for access logs on those folks. They show present in the building, that kind of thing.” But, he and the other Defendants had the actual card reader data showing the precise floor within the building where people were located at specific times. Rather than presenting that evidence, the Defendants elicited vague testimony about other people's whereabouts.

         Gagliardi watched Harmon testify before the grand jury that he did not recall being present at the Trull arrest meeting. However, Harmon's card reader data not only showed him “present in the building, ” it showed him leaving his office on the fifth floor and arriving to the second floor that day, just after the Trull interview started at 9:34 a.m., then leaving the second floor after Trull was arrested at 10:14 a.m. This evidence was withheld from the grand jury. Gagliardi also omitted previous testimony from Deputy Lincoln admitting that he was at the Trull arrest meeting and that his card reader data showed him arriving on the second floor at 8:19 a.m. and leaving to go to the fifth floor at 11:09 a.m., after Trull was arrested. Deputy Lincoln also stated during a March 24, 2016 interview that Plaintiff was not present at the arrest meeting. Hurlbert and Fevurly did not call Deputy Lincoln to testify before the grand jury.

         Trull had related at least four different versions of the incident between her and Garretson to various officials. In almost every version, Trull claimed she changed from the prior version due to coercion by either Habert, her boss, or Presley, then EPSCO undersheriff. However, the first version provided to Breister, for which probable cause allegedly existed to arrest Trull, was not presented to the grand jury by Defendants.

         On May 25, 2016, Plaintiff was indicted for the kidnapping and false imprisonment of Kelly Trull, docket number 2016-CR-2686, based on the theory that Plaintiff was present during the Trull arrest meeting and ordered her arrest. During the pendency of the case, Plaintiff's defense attorneys analyzed the key card reader data and filed motions to dismiss the indictment. Brauchler, May, Hurlbert, and Fuverly responded to the motions to dismiss by arguing that the key card reader data was of “extremely limited utility, ” and that Plaintiff had engaged in “ghosting” to get himself into the Trull arrest meeting without his key card being used and/or that Plaintiff had called in the order to have Trull arrested. However, Plaintiff's telephone records, to which the Defendants had access, show that he did not make or receive a single telephone call to or from anyone involved in the Trull arrest on September 12, 2013.

         All charges against Plaintiff were dismissed on October 16, 2017. In the motion to dismiss the charges, Brauchler and Hurlbert stated that, following the indictment of Plaintiff, information was uncovered that called into question the testimony of their main witnesses, namely that Jaworski had made a racist statement about President Obama and that Detective Kaiser testified in another proceeding that Gerhart gave the order to arrest Trull. However, Brauchler and Hurlbert knew this information before Plaintiff was indicted. After the charges against Plaintiff were dismissed, Hurlbert made a public statement that Plaintiff was guilty despite the dismissal of the charges.

         Judicial districts, including the Fourth Judicial District, maintain what is commonly known as a “Brady list.” The Brady list is routinely disclosed to defense counsel through the discovery process and provides a list of sheriff's deputies within the judicial district who have previously strayed from the truth or committed other acts of wrongdoing. In late 2016, Plaintiff was contacted by an attorney for whom he often worked as a private investigator or expert witness, and was told that his name had been disclosed on the Brady list and, therefore, the attorney could no longer use him as an investigator or expert. At that time, within the Fourth Judicial District, the Brady list was compiled by the internal affairs unit at the supervision and direction of Defendant Lisa Kirkman, an attorney and legal advisor to the sheriff's office, Sheriff Elder, Undersheriff Breister, and DA May. When he left the EPCSO in 2014, Plaintiff was not on the Brady list and had never been, and he has never done anything to warrant being placed on the Brady list.


         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 the plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008) (recognizing federal courts are courts of limited jurisdiction and “there is a presumption against our jurisdiction”). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013). A motion to dismiss under Rule 12(b) “admits all well-pleaded facts in the complaint as distinguished from conclusory allegations.” Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Pueblo of Jemez v. United States, 790 F.3d 1143, 1151 (10th Cir. 2015). Accordingly, Plaintiff bears the burden in this case of establishing that this Court has jurisdiction to hear his claims.

         Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. Holt v. United States, 46 F.3d 1000, 1002 (10th 1995).

First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true. Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.

Id. at 1002-03 (citations omitted); see also Pueblo of Jemez, 790 F.3d at 1148 n.4. The present motion launches a facial attack on this Court's subject matter jurisdiction; therefore, the Court will accept the Second Amended Complaint's factual allegations as true for its Rule 12(b)(1) analysis.

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

         The purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 2008). “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 pled 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. 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.” S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (quoting 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.

         However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The complaint must provide “more than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action, ” so that “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” the complaint has made an allegation, “but it has not shown that the pleader is entitled to relief.” Id. (quotation marks and citation omitted).


         I. Federal (Section 1983) Claims

         Plaintiff sues the non-entity Defendants in both their individual and official capacities. Am. Compl. ¶¶ 5-10, 12, 14-16. Both entity and non-entity Defendants argue first that they enjoy certain immunities rendering the Court without jurisdiction to hear particular claims against them and, second, that the Plaintiff fails to plausibly allege the remaining claims. Typically, “[w]hen a defendant seeks dismissal under Rule 12(b)(1) and 12(b)(6) in the alternative, the court must decide first the 12(b)(1) motion for the 12(b)(6) challenge would be moot if the court lacked subject matter jurisdiction.” Glapion v. Castro, 79 F.Supp.3d 1207, 1213 (D. Colo. 2015) (citing Mounkes v. Conklin, 922 F.Supp. 1501, 1506 (D. Kan. 1996)).

         A. Sovereign Immunity

         Defendants argue they are absolutely immune pursuant to the doctrine of sovereign immunity from liability for Plaintiff's Section 1983 claims (Claims 1, 2, 3 and 5) for monetary damages alleged against them as state entities or in their official capacities.

         Claims against state officials in their official capacities are essentially claims against the state entity. Ky. v. Graham, 473 U.S. 159, 165 (1985) (“Official-capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent.”) (citation and quotations omitted). It is well-established that “the Eleventh Amendment precludes a federal court from assessing damages against state officials sued in their official capacities because such suits are in essence suits against the state.” Hunt v. Bennett, 17 F.3d 1263, 1267 (10th Cir. 1994). Absent an unmistakable waiver by a state of its Eleventh Amendment immunity, or an unmistakable abrogation of such immunity by Congress, the Eleventh Amendment provides absolute immunity from suit in federal courts for states and their agencies. Blatchford v. Native Village of Noatak & Circle Village, 501 U.S. 775, 785-86 (1991). Thus, an official-capacity lawsuit is appropriate only where the claims could be sustained against the entity in its own name. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978).

         The Supreme Court has recognized an exception to the Eleventh Amendment for such actions where a plaintiff seeks prospective enforcement of his or her federal rights. See Ex parte Young, 209 U.S. 123, 159-60 (1908). But Young makes it clear that this exception “may not be used to obtain a declaration that a state officer has violated a plaintiff's federal rights in the past” or as a means for seeking money damages. Buchwald v. Univ. of New Mexico Sch. of Med., 159 F.3d 487, 495 (10th Cir. 1998) (citations and quotations omitted).

         In this case, the parties do not dispute that the CBI is a state entity (and Gagliardi a state officer) for purposes of an Eleventh Amendment immunity analysis. See Resp. 25. However, citing the Colorado Supreme Court's opinion in Davidson v. Sandstrom, 83 P.3d 648 (Colo. 2004), Plaintiff argues that the Fourth and Eighteenth Judicial District Attorney's Offices and the Defendants employed by them (sued in their official capacities) are not protected by the Eleventh Amendment. Defendants counter that more recent case law clarifies the Davidson opinion does not stand for the proposition that district attorneys are not state officers for a sovereign immunity analysis. The Court agrees with Defendants.

         Plaintiff contends that, in Davidson, the Colorado Supreme Court clarified that the office of District Attorney is a political subdivision under state law, not an instrumentality of the State of Colorado. Resp. 13. However, the Honorable Neil M. Gorsuch rejected this argument in Van de Weghe v. Chambers, 569 Fed.Appx. 617, 621 (10th Cir. 2014) saying, “Davidson held no such thing. The decision held only that the state's judicial districts (not District Attorneys assigned to them) are political subdivisions of the state.” Id. The court proceeded to list several decisions in Colorado's appellate courts finding district attorneys to be “state public officers” who “belong to the executive branch, ” as well as Colorado statutes providing that district attorneys “appear on ‘behalf of the state' and may appear in court outside their particular districts ‘on behalf of' and ‘represent[ing] the people of the state of Colorado' as a whole, ” which the Davidson court “didn't question.” Id. The court concluded that Davidson did not “throw Rozek [v. Topolnicki, 865 F.2d 1154 (10th Cir. 1989)[1] overboard.” Id.; see also Sanchez v. Hartley, 65 F.Supp.3d 1111, 1126 (D. Colo. 2014); Bragg v. Office of the Dist. Attorney, 704 F.Supp.2d 1032, 1064-67 (D. Colo. 2009).

         This Court agrees with the more recent opinions and finds that Defendants Fourth and Eighth Judicial District Attorney's Offices, as well as Defendants May, Gerhart, Brauchler, Hurlbert, and Fevurly, in their official capacities, are state entities entitled to sovereign immunity under the Eleventh Amendment against claims for monetary damages and retrospective injunctive and/or declaratory relief.

         Here, Plaintiff's Request for Relief in the operative pleading reflects requests for only monetary (“compensatory, ” “punitive, ” and “economic”) damages against the entity and official-capacity Defendants. ECF No. 50 at 48. Therefore, to the extent that Plaintiff seeks monetary damages and other relief for past harms raised in his Section 1983 claims against Defendants CBI, Fourth Judicial District Attorney's Office, and Eighteenth Judicial District Attorney's Office, and against Defendants Gagliardi, May, Gerhart, Brauchler, Hurlbert, and Fevurly in their official capacities, the Court finds it lacks jurisdiction under the Eleventh Amendment to hear such claims.

         Plaintiff argues that, despite the absence of a specific request for prospective injunctive relief, his Second Amended Complaint may be construed as seeking an order removing his name from the Brady list. Resp. 8. The Court disagrees. The operative pleading, while alleging that Plaintiff learned his name had been placed on the Brady list “in late 2016, ” contains no allegation that Plaintiff's name remains on the list nor any request that his name be removed. Rather, Plaintiff alleges claims for Defamation and Tortious Interference with Prospective Business Advantage based on the placement of his name on the Brady list, and he seeks monetary damages for these claims. See Am. Compl. ¶¶ 302-303, 316-317. Plaintiff is not permitted to add allegations to his pleading through briefing on a dispositive motion. See Fed. R. Civ. P. 15.

         Accordingly, Claims 1 and 2 against the official-capacity Defendants, Claim 3 against the state-entity and official-capacity Defendants, and Claim 5[2] are dismissed.

         B. Prosecutorial Immunity

         Absolute immunity provides protection from suit for some public officials on the basis that “harassment by unfounded litigation would cause a deflection of the [official's] energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.” Imbler v. Pachtman, 424 U.S. 409, 423 (1976). Prosecutors enjoy absolute immunity from civil suits for damages asserted against them for actions taken “in initiating a prosecution and in presenting the State's case.” Id. at 431.

         The question of whether a prosecutor is entitled to absolute immunity for his or her actions depends on the nature of the function performed by the prosecutor at the time of the alleged misconduct. Buckley v. Fitzsimmons, 509 U.S. 259, 271 (1993). Actions taken as an advocate or, more specifically, “acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State” support absolute immunity. Id. at 273; see also Warnick v. Cooley, 895 F.3d 746, 751 (10th Cir. 2018) (“[p]rosecutors are entitled to absolute immunity” for anything they do in their roles as advocates, including their “decisions to prosecute.”) (quoting Nielander v. Bd. of Cty. Comm'rs, 582 F.3d 1155, 1164 (10th Cir. 2009)).

         However, “[a] prosecutor's administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity.” Buckley, 509 U.S. at 273. Instead, prosecutors performing these acts enjoy only qualified immunity. Id. But, “while prosecutors may not enjoy absolute immunity for activities unrelated to advocacy, that does not mean that engaging in such activities removes their immunity for activities that are related to advocacy. . . . absolute immunity is not ‘subject to all-or-nothing application'-it can apply to some of the prosecutor's actions while not to others at the same time.” Warnick, 895 F.3d at 751.

         If prosecutorial immunity does attach, it is absolute and, therefore, applies to cases of malicious or bad faith prosecution, Imbler, 424 U.S. at 437, even if it is obvious “to the prosecutor that he is acting unconstitutionally and thus beyond his authority.” Lerwill v. Joslin, 712 F.2d 435, 438 (10th Cir. 1983). “[A]ctivities undertaken by a prosecutor before probable cause exists often lie outside the purview of a prosecutor's role as an advocate.” Warnick, 895 F.3d at 752 (citing Buckley, 509 U.S. at 274).

But while a lack of probable cause is a good clue a prosecutor is engaging in activity beyond the scope of advocacy, it is not determinative. Some functions-like filing charges-are inherently related to a prosecutor's role as an advocate, and therefore protected by absolute immunity whether or not probable cause exists. Hence the well-settled rule that prosecutors are “entitled to absolute immunity for the malicious prosecution of someone whom [they] lacked probable cause to indict.”


         In this case, Plaintiff alleges Defendants May, Gerhart, Brauchler, Hurlbert and Fevurly conspired to fabricate evidence, manipulate witness testimony, suppress exculpatory evidence, and falsify charges in an effort to mislead a grand jury to indict him. These Defendants argue they, as “Prosecutors, ” are protected by prosecutorial immunity stating, “both submitting a case to the grand jury and bringing charges are intimately associated with a prosecutor's role as an advocate for the State.” The “Law Enforcement” Defendants (Elder, Breister, and Kirkman) also contend they are absolutely immune because “they are alleged to have engaged in functions intimately associated with the judicial phase of the criminal process and outside of their normal investigatory roles.” Plaintiff concedes that prosecutors are entitled to absolute immunity for any alleged conduct as advocates, but counters that “because Brauchler, May, Fevurly, and/or Hurlbert took active roles in the investigatory process that resulted in the constitutional deprivation ..., the immunity afforded to them should be the same as the other investigators or law enforcement actors.” In addition, Plaintiff asserts that Defendants' case law supporting an argument that the Law Enforcement Defendants are entitled to absolute immunity is abrogated, inapplicable, and/or distinguishable from the facts alleged here.

         To determine whether the individual Defendants are absolutely immune from liability for the Plaintiff's Section 1983 claims, the Court must apply the “function” test to the applicable allegations.

         1. Eighteenth Judicial ...

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