United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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.
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.
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., ¶
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.
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.
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.
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.
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.
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).
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.
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.
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).
Federal Constitutional Claims
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.
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.
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.
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
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.
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
Judicial, Quasi-Judicial, and Witness Immunity
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.
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.
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
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 ...