Weise v. Colorado Springs

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on defendants’ Motion to Dismiss [Docket No. 49]. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.

         I. BACKGROUND^[1]

         In August 2015, plaintiff submitted a Colorado Open Records Act (“CORA”) request for any air quality studies conducted and/or commissioned by Colorado Springs Utilities regarding emissions from the Martin Drake Power Plant. Docket No. 41 at 7, ¶ 27. After Colorado Springs refused to release the records, citing the attorney-client and work product privileges, plaintiff filed suit in the District Court for El Paso County, Colorado. Id., ¶ 28. The District Court ruled in favor of Colorado Springs on May 5, 2016, and on June 22, 2016, plaintiff appealed the decision to the Colorado Court of Appeals. Id. at 7-8, ¶¶ 29, 31.

         At some point thereafter, the Clerk’s Office for the Colorado Court of Appeals mailed the parties an electronic copy of the trial court record. Id. at 8, ¶ 32. While reviewing the record in November 2016, plaintiff discovered an Air Quality Study that she had been seeking in the CORA proceedings. Id., ¶ 33. Over the next few days, plaintiff filed several motions in the Colorado Court of Appeals requesting guidance about the disclosure of the Air Quality Study and seeking the study’s immediate release. Id. at 8-9, ¶ 36. On November 16, 2016, the Colorado Court of Appeals entered an order clarifying that the Air Quality Study had been disclosed as the result of a clerical error and instructing the parties that they were not to distribute, download, retain, or disseminate the sealed material. Id. at 9, ¶ 37. Plaintiff then confirmed with the court that the court’s order did not prevent her from sharing her publicly filed motions or speaking about the contents of the documents that had inadvertently been disclosed to her. Id., ¶ 38.

         Plaintiff shared two of her motions with the Colorado Springs Gazette and others via email. Id., ¶ 39. The motions contained statements that (1) records affecting public health and safety had “been improperly withheld”; (2) Colorado Springs Utilities had told the public that it was in compliance with sulfur dioxide regulations and standards, despite being obligated to report any air quality violations to the Environmental Protection Agency; and (3) withholding the Air Quality Study was “an egregious abuse of the CORA . . . laws.” Id. at 9-10, ¶ 39.

         On November 21, 2016, the Colorado Springs Gazette published a story about the Air Quality Study. Id. at 10, ¶ 40. Although the article did not quote from the Air Quality Study, it reported plaintiff’s conclusion that “sulfur-dioxide emissions from the coal-fired Martin Drake Power Plant violated federal standards contrary to filings by Colorado Springs Utilities.” Id. The article also quoted Amy Trinidad, the spokesperson for Colorado Springs Utilities, who disputed plaintiff’s characterization of the Air Quality Study. Id.

         On November 22, 2016, Colorado Springs filed a “Cross Motion for Order to Show Cause” requesting that plaintiff be held in contempt for violating the Colorado Court of Appeals’ November 16, 2016 order. Id. at 10-11, ¶ 42. The court dismissed the motion with prejudice on February 8, 2017, id. at 11, ¶ 46, and never made a finding that plaintiff had violated a law or court order. Id., ¶ 47.

         In November and December 2016, various Colorado Springs officials made public statements concerning plaintiff’s characterization of the Air Quality Study. For example, in an email dated November 30, 2016, city council member and Colorado Springs Utilities Board Chair Andres Pico told a constituent that plaintiff’s statements about the Air Quality Study were “not true.” Id. at 12, ¶ 49. In another email dated December 5, 2016, Mr. Pico informed a different Colorado Springs resident, “The information in the article is not accurate nor are [Ms. Weise’s] allegations being stated at all true. The allegation [from Ms. Weise] is that the study proves past violations of air quality standards. That allegation is absolutely false.” Id., ¶ 50. Mr. Pico made similar statements in an email exchange on December 16, 2016, telling a Colorado Springs resident that what she had “read in the paper [was] not true.” Id. at 13, ¶ 51. Finally, during a meeting of the Colorado Springs Utilities Board on December 19, 2016, Mr. Pico stated, “The report that the Drake Power Plant has been in violation is simply not true.” Id., ¶ 52.

         On December 1, 2016, Bill Murray, another Colorado Springs city council and Utilities Board member, told a resident in an email concerning plaintiff, “You know I do not like it. However, what she did she knew was illegal.” Id. at 14, ¶ 56. At a public forum the next day, Mr. Murray again stated that plaintiffs actions in speaking about the Air Quality Study were illegal. Id., ¶ 57. Colorado Springs Utilities employee Amy Trinidad likewise told a reporter for the Colorado Springs Independent media that “Ms. Weise may have violated [the Colorado Court of Appeals] order when she public [sic] discussed documents sealed by the District Court.” Id. at 15, ¶ 62.

         Plaintiff is licensed to practice law in California, New York, and Pennsylvania. Id. at 16, ¶ 70. In March 2017, the Colorado Springs City Council voted to take formal action against plaintiff in all three states. Id. at 16-17, ¶ 71. At that time, Tom Strand, Bill Murray, Helen Collins, Keith King, Jill Gaebler, Andres Pico, Larry Bagley, Don Knight, and Merv Bennett were members of the city council. Id. at 17, ¶ 71.

         In April 2017, Colorado Springs’ City Attorney Wynetta Massey filed formal actions against plaintiff with the state bar associations of New York, California, and Pennsylvania. Id. at 17, ¶¶ 72-75. The complaints stated that plaintiff had violated one or more court orders and had unlawfully disclosed government records. Id., ¶ 72. Plaintiff was forced to obtain counsel in multiple states to defend against the bar complaints, even though all three were ultimately dismissed in her favor. Id. at 19, ¶¶ 85-87. After the complaints were dismissed, Colorado Springs City Council member Tom Strand stated publicly that plaintiff had engaged in unethical conduct by filing her motion with the Colorado Court of Appeals and making statements regarding the Martin Drake Power Plant. Id., ¶ 87.

         As a result of defendants’ conduct, plaintiff has had to take significant time away from her business consulting firm, has suffered damages to her personal and professional reputation, and has lost at least one professional client opportunity. Id. at 20, ¶ 88.

         Plaintiff filed this lawsuit on November 13, 2017. Docket No. 1. In her operative complaint, plaintiff asserts First Amendment free speech and retaliation claims against Colorado Springs and defendants Massey, Strand, Murray, Collins, King, Gaebler, Pico, Bagley, Knight, and Bennett in their individual and official capacities; a Fourteenth Amendment stigma-plus claim against all defendants; state-law defamation claims against defendants Pico, Murray, Trinidad, and Massey; a state-law claim for intentional infliction of emotional distress against defendants Pico, Murray, Trinidad, and Massey; and a state-law abuse of process claim against defendants Massey, Strand, Murray, Collins, King, Gaebler, Pico, Bagley, Knight, and Bennett. See Docket No. 41 at 20-28. On June 5, 2018, defendants moved to dismiss plaintiff’s second amended complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6), asserting various governmental immunity defenses and failure to state a claim. Docket No. 49. Plaintiff filed a response to the motion on July 10, 2018, Docket No. 54, to which defendants replied on August 7, 2018. Docket No. 58.

         II. LEGAL STANDARD

         To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must allege enough factual matter that, taken as true, makes the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not shown–that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration marks omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his] claims across the line from conceivable to plausible in order to survive a motion to dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s allegations are “so general that they encompass a wide swath of conduct, much of it innocent, ” then plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted). Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (alteration marks omitted).

         Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate if the Court lacks subject matter jurisdiction over claims for relief asserted in the complaint. Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving party may (1) facially attack the complaint’s allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)). When resolving a facial attack on the allegations of subject matter jurisdiction, the Court “must accept the allegations in the complaint as true.” Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). To the extent the defendant attacks the factual basis for subject matter jurisdiction, the Court “may not presume the truthfulness of the factual allegations in the complaint, but may consider evidence to resolve disputed jurisdictional facts.” SK Finance SA v. La Plata County, 126 F.3d 1272, 1275 (10th Cir. 1997). “Reference to evidence outside the pleadings does not convert the motion to dismiss into a motion for summary judgment in such circumstances.” Id. Ultimately, and in either case, plaintiff has “[t]he burden of establishing subject matter jurisdiction” because she is “the party asserting jurisdiction.” Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008).

         Defendants in this case rely on several documents outside of the pleadings in moving to dismiss plaintiff’s claims. See Docket Nos. 49-1 to 49-11. Generally, if a court considers matters outside the pleadings in deciding a Rule 12(b)(6) motion, “the motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P 12(d). However, “if a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff’s claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.” GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). Here, defendants have submitted (1) plaintiff’s Notice to Court and Request for Guidance, which she filed in the Colorado Court of Appeals on November 16, 2016 [Docket No. 49-1]; (2) the Colorado Court of Appeals’ November 16, 2016 order stating that the sealed file was not to be “disseminated” [Docket No. 49-2]; (3) plaintiff’s Motion for Immediate Access to Certain Withheld Records, which she filed with the Colorado Court of Appeals on November 21, 2016 [Docket No. 49-3]; (4) two email exchanges regarding plaintiff’s November 21, 2016 motion [Docket No. 49-4]; (5) news articles concerning the inadvertently-disclosed Air Quality Study [Docket No. 49-5]; (6) the Colorado Court of Appeals December 6, 2016 order finding good cause for the issuance of a contempt citation [Docket NO. 49-6]; (7) the Colorado Court of Appeals January 6, 2017 contempt advisement [Docket No. 49-7]; (8) a Stipulated Motion to Dismiss Appeal and Contempt Citation filed by plaintiff and Colorado Springs on February 3, 2017 in the CORA litigation [Docket No. 49-8]; (9) a December 16, 2016 email exchange between Andres Pico and Jacquie Ostrom, and meeting minutes for the December 19, 2016 Colorado Springs Utilities Board meeting [Docket No. 49-9]; (10) a January 5, 2017 blog article regarding plaintiff’s contempt proceedings [Docket No. 49-10]; and (11) a November 17, 2016 order by the Colorado Court of Appeals denying Colorado Springs’ motion to modify the November 16, 2016 order [Docket No. 49-11]. With the exception of Docket Nos. 49-7 and 49-8, all of these exhibits are referenced in and central to plaintiff’s complaint. See Docket No. 41 at 8-13, 15, ¶¶ 36-37, 39-40, 44-45, 49-52, 62. Because plaintiff does not dispute their authenticity, see Docket No. 54 at 5-6, the Court will consider the exhibits in resolving defendants’ motion to dismiss.

         The remaining exhibits, Docket Nos. 49-7 and 49-8, are part of the judicial record in the underlying CORA proceedings. As matters of public record subject to judicial notice, the orders may be considered for their contents without converting the motion to dismiss into a motion for summary judgment. See Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006).

         III. ANALYSIS

         A. Federal Constitutional Claims

         Defendants move to dismiss plaintiff’s claims under the First and Fourteenth Amendments on three grounds: (1) defendants are absolutely immune from suit; (2) plaintiff’s allegations do not establish a constitutional violation or a claim for municipal liability; and (3) plaintiff’s rights were not clearly established at the time of the alleged constitutional violations. See Docket No. 49 at 7, 12, 17, 18.

         1. Absolute Immunity

         Defendants argue that they are absolutely immune from liability under the First and Fourteenth Amendments to the extent plaintiff’s constitutional claims are premised on defendants’ filing of the formal grievances with the offices of attorney regulation and the motion for contempt in the underlying CORA litigation. See Docket No. 49 at 7-10. Plaintiff responds that the state-created immunities relied on by defendants cannot serve as a bar to her federal constitutional claims under the Supremacy Clause. See Docket No. 54 at 6-8. Additionally, she argues that defendants have not cited any authority supporting the extension of federal absolute immunity doctrines to the facts of this case. See Id . at 9-13.

         Defendants bifurcate their immunity argument into two sections. The first addresses their entitlement to immunity for the filing of attorney grievances and appears to rely exclusively on state-created immunity doctrines. See Docket No. 49 at 7-8 (arguing that the decision to file formal grievances with the offices of attorney regulation “is protected by an absolute privilege in all four states”). The second section asserts absolute immunity with respect to the filing of the contempt motion and relies on a mix of state and federal cases. See Id . at 8-10.

         Plaintiff correctly argues that state-created immunity doctrines do not operate as a bar to her federal constitutional claims. As the Supreme Court explained in Martinez v. California, 444 U.S. 277 (1980),

Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985(3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced. The immunity claim raises a question of federal law.

Id. at 284 n.8; see also Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 375 (1990) (“The elements of, and the defenses to, a federal cause of action are defined by federal law.”); Tieman v. Tul-Center, Inc., 18 F.3d 851, 853 (10th Cir. 1994) (holding that the Oklahoma Governmental Tort Claims Act did not immunize the defendants from liability under 42 U.S.C. § 1983). Thus, to the extent defendants rely on immunity doctrines created by state statute or common law, those doctrines do not support the dismissal of plaintiff’s claims under the First and Fourteenth Amendments.

         Some of the cases cited by defendants address absolute immunity doctrines recognized under federal law. See, e.g., Valdez v. City & Cty. of Denver, 878 F.2d 1285 (10th Cir. 1989). Although defendants do not clearly distinguish among the various federally-recognized forms of absolute immunity, see Rehberg v. Paulk, 566 U.S. 356, 363 (2012) (discussing federal immunity doctrines), the cases they cite address four types of immunity that are potentially relevant in this case: (1) judicial or quasi-judicial immunity; (2) witness immunity; (3) legislative immunity; and (4) prosecutorial immunity. See, e.g., Briscoe v. LaHue, 460 U.S. 325, 335-46 (1983) (witness immunity); Butz v. Economou, 438 U.S. 478, 511-17 (1978) (quasi-judicial and prosecutorial immunity); Imbler v. Pachtman, 424 U.S. 409, 420-30 (1976) (prosecutorial immunity); Stein v. Disciplinary Bd. of Sup. Ct. of N.M., 520 F.3d 1183, 1190-91, 1193-95 (10th Cir. 2008) (judicial, quasi-judicial, and prosecutorial immunity); Valdez, 878 F.2d at 1287-88 (judicial and quasi-judicial immunity); Spear v. Town of W. Hartford, 954 F.2d 63, 66 (2d Cir. 1992) (prosecutorial immunity); Shoultes v. Laidlaw, 886 F.2d 114, 117-18 (6th Cir. 1989) (legislative, prosecutorial, and judicial immunity).

         a. Judicial, Quasi-Judicial, and Witness Immunity

         Although defendants cite cases involving the assertion of judicial, quasi-judicial, and witness immunity, they have not provided any basis for applying these doctrines in the context of this lawsuit. See Collins v. Daniels, 916 F.3d 1302, 1315 (10th Cir. 2019) (“The proponent of a claim to absolute immunity bears the burden of establishing the justification for such immunity.” (quoting Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432 (1993))). The doctrine of judicial immunity protects government officials performing judicial functions from liability in damages suits. See Diaz v. King, 687 Fed.App’x 709, 711-12 (10th Cir. 2017) (unpublished). Under quasi-judicial immunity, government officials are immune from liability for carrying out facially valid court orders. See Moss v. Kopp, 559 F.3d 1155, 1163 (10th Cir. 2009); Valdez, 878 F.2d at 1288-90. Finally, witness immunity applies to any claim based on a witness’s testimony in judicial proceedings. See Rehberg, 566 U.S. at 367. Because defendants have not cited any allegations showing that they were performing judicial functions, executing a court order, or testifying as a witness in judicial proceedings, these immunity doctrines do not apply.

         b. Legislative Immunity

         “Absolute legislative immunity attaches to all actions taken in the sphere of legitimate legislative activity.” Collins, 916 F.3d at 1317 (quoting Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998)). The doctrine extends to the legislative activities of local legislators. See Bogan, 523 U.S. at 49. “Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it.” Id. at 54.

         At the outset, the Court notes that defendants do not clearly assert legislative immunity with respect to the attorney misconduct complaints. Defendants’ only apparent invocation of the doctrine is a citation to Shoultes in the portion of their brief that addresses their entitlement to immunity for the filing of the contempt motion. See Docket No. 49 at 10. But even that discussion fails to specify which of the various defendants are asserting legislative immunity and for what conduct.

         Even construing defendants’ argument liberally, the Court finds no basis for applying legislative immunity in this case. There is no indication from the allegations that Ms. Massey, the city attorney, was acting in a legislative capacity when she filed the contempt motion and the attorney misconduct complaints. Compare Bogan, 523 U.S. at 55 (holding that voting for an ordinance, introducing a budget, and signing an ordinance into law constituted legislative actions because “they were integral steps in the legislative process”); Shoultes, 886 F.2d at 118 (extending prosecutorial immunity to city attorney for his decision to seek a contempt citation). And, to the extent Shoultes and Bogan support a finding that voting for a city ordinance constitutes a “quintessentially legislative” activity, Bogan, 523 U.S. at 45; see also Shoultes, 886 F.2d at 117, “voting on an issue, in and of itself, [does not] determine that [an] act is legislative in nature.” Kamplain v. Curry ...