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Schmidt v. Petek

United States District Court, D. Colorado

November 7, 2019

DAVID PETEK, in an individual capacity, BRANDON BEGGAN, in an individual capacity, BRITTANY BRODBECK, in an individual capacity, JUDITH LABUDA, in an individual capacity, ANDREW HARTMAN, in an individual capacity, ADRIAN VAN NICE, in an individual capacity, MICHAEL DOUGHERTY, in an individual capacity, THE ERIE POLICE DEPARTMENT, THE TOWN OF ERIE, THE COUNTY OF BOULDER, and THE STATE OF COLORADO, Defendants.



         This action arises out of the criminal prosecution of Plaintiff in Boulder County, Colorado. Plaintiff's Complaint purports to allege eleven causes of action. ECF 1. Each “cause of action” is a recitation of facts specific to one of the individual Defendants, followed by a paragraph listing every “alleged crime” committed by that Defendant. In response, all of the Defendants filed motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) arguing the Court lacks subject matter jurisdiction and the Plaintiff fails to plausibly state claims for which relief may be granted. For the reasons that follow, the Court will grant the Defendants' motions and dismiss all claims.


         Plaintiff brought this case because of alleged “crimes” committed against him during his prosecution in an underlying criminal case in Boulder County, Colorado. The Court understands the criminal case to stem from an incident that occurred while Plaintiff, a bail bondsman, attempted to apprehend two individuals with outstanding warrants in Erie, Colorado. On February 18, 2018, Plaintiff and three other bondsmen entered a storage facility in Erie to pursue two targets who were suspected of living in one of the storage units. The bondsmen proceeded to make contact with the two targets and a third individual who was also living in the storage unit. During the ensuing struggle, one of the bondsmen's targets was severely beaten, and all three storage unit inhabitants were detained. Police officers from the Erie Police Department were dispatched to the facility to respond to the disturbance and conducted an investigation. The investigation resulted in an arrest warrant for Plaintiff, charging him with one count each of assault in the third degree and false imprisonment. ECF 25-2, 1. Plaintiff filed this case against police officers involved in his criminal investigation, the county court judges and district attorneys involved in his criminal prosecution, as well as the related police department, town, county, and state.

         Plaintiff generally states he filed this suit “to enforce provisions of 42 U.S.C. §1938, …18 U.S.C. § 242, …and 25 U.S.C. § 1302(8).” Compl. 1-2, ECF 1. The Court construes Plaintiff's pleading to allege constitutional claims under 42 U.S.C. § 1983 (which Plaintiff confirms in his Responses) and state tort law claims. In “Plaintiff's Motion to Dismiss Defendant Hartman's Motion to Dismiss, ” ECF 31, Plaintiff conceded that 25 U.S.C. § 1302(8), which outlines the constitutional rights of Indian Tribes, is not applicable. Additionally, the Court disregards any claim brought under state criminal law that does not include a private right of action, as well as Plaintiff's invocation of 18 U.S.C. § 242 (criminal deprivation of civil rights). See Allstate Ins. Co. v. Parfrey, 830 P.2d 905, 911 (Colo. 1992); see also Houck v. Gurich, 515 Fed.Appx. 724 (10th Cir. 2013) (“As we noted in one of Houck's previous appeals, 18 U.S.C. § 242 does not create a private civil cause of action.”).

         Although the Complaint purports to allege eleven causes of action, by the Court's count, Plaintiff is alleging close to two dozen claims against the various Defendants as follows.

         Defendants David Petek, Brandon Beggan, and Brittan Brodbeck are officers with the Erie Police Department. Plaintiff asserts that they committed the twelve “crimes” (construed as Plaintiff's claims against Defendants) of “fraud, perjury, harassment, slander, libel, defamation of character (calumny, vilification, or traducement), abuse of authority, violation of oath of office someone under color of law, treason, false imprisonment, false arrest, racketeering - RICO, conspiracy, collusion/complicity.” Plaintiff also alleges claims for witness tampering and “false statement(s)” against Defendants Petek and Beggan.

         In his Complaint, Plaintiff imputes responsibility for the claims alleged against the individual police Defendants to Defendants Erie Police Department, the Town of Erie, the County of Boulder (the county in which Erie is located), and the State of Colorado. Plaintiff does not allege any separate claims against any of these entities, but rather states summarily that each is “fully responsible, liable and accountable for any unlawful act(s)” committed by the individual police Defendants. See Compl. 7-8. The Court liberally construes Plaintiff's pleading as asserting a theory of vicarious liability for each of the entity Defendants, arguing that the State is vicariously liable for the County, which is, in turn, liable for the Town, which is then liable for the Police Department, which is liable for the actions of the individual police officers.

         Defendants LaBuda and Hartman are judges in Colorado's 20th Judicial District, which encompasses Defendant County of Boulder and includes Defendant Town of Erie. Plaintiff claims that both judicial Defendants committed the “crimes” of fraud, perjury, harassment, malicious prosecution, abuse of authority, violation of oath of office someone by under color of law, treason, and “racketeering - RICO, a conspiracy, collusion/complicity.” Compl. 4-5. Plaintiff also alleges different, additional claims against each: he accuses Defendant LaBuda of slander, libel, defamation of character, false imprisonment, and false arrest, id. at 4; and he accuses Defendant Hartman of “deprivation of rights, …violation of civil rights, violation of due process of law, excess of jurisdiction of the court where none existed, [and] exceeded discretion of the court, ” id. at 5.

         Lastly, Defendants Van Nice and Dougherty are, respectively, Chief Trial Deputy District Attorney and the District Attorney of Boulder County. Plaintiff alleges claims against both for “providing false statements, ” fraud, perjury, abuse of authority, harassment, slander, defamation of character, malicious prosecution, violation of oath of office by someone under color of law, treason, “deprivation of rights, violation of civil rights, violation of due process of law, exceed[ing] jurisdiction of the court where none existed, [and] racketeering - RICO, a conspiracy, complicity.” Id. at 6-7. Plaintiff also made claims for “threats” and extortion against Defendant Van Nice and a claim for libel against Defendant Dougherty. Id.

         Together, the Defendants filed four Motions to Dismiss, grouped together as follows: Defendant Hartman filed a Motion to Dismiss, ECF 14, which was later joined by and incorporated into the Motion to Dismiss filed by Defendants LaBuda and the State of Colorado, ECF 23.[1] These three Defendants, collectively, are hereafter referred to as “the State Defendants.” Defendants Van Nice, Dougherty, and the County of Boulder (collectively “the Boulder Defendants”) jointly filed a Motion to Dismiss. ECF 15. The remaining Defendants, David Petek, Brandon Beggan, Brittany Brodbeck, the Erie Police Department, and the Town of Erie (collectively “the Erie Defendants”), jointly filed the fourth Motion to Dismiss in this case. ECF 25. The arguments raised by each group of Defendants are analyzed in turn below.


         The following are relevant factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by Plaintiff in his Complaint, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). These “facts” are what the Court could extract of the narrative from the Complaint, which is, to say the least, difficult to follow.

         The individual police Defendants and other nonparties made sworn police statements.[2]Sergeant Gordanier's[3] sworn police statement stated, in part, “Officer Petek advised he had spoken with the bail bondsmen and learned they had jumped over the fence.” Defendant Petek provided a sworn police statement which stated in part, “I also asked a day shift officer to contact the property manager, Kreg (last name unknown), to see if he wants any type of trespass charges pressed against the bonding agents.” Defendant Beggan provided a sworn statement which stated in part, “I asked Kreg if he wanted to press charges against the bail bondsmen who had jumped the fence surrounding the property of the storage facility in order to contact Adrian Martinez.” In an affidavit dated March 20, 2018, Defendant Brodbeck stated, “Officer Petek advised he had spoken with the bail bondsmen and learned they had jumped over the fence.” Plaintiff made statements in a telephone interview.

         On March 23, 2018, Defendant LaBuda executed a request for an arrest warrant for Plaintiff. The warrant was issued based on the March 20, 2018 affidavit from Defendant Brodbeck. At some point in 2018, Plaintiff was arrested pursuant to the warrant. Plaintiff's criminal complaint was signed by Defendant Dougherty and stated in part, “[u]pon Oath, the undersigned states that the facts in the attached complaint are true and that the offense(s) charged was (were) committed.” The criminal complaint included the phrase “serious bodily injury.” At some point after Plaintiff's arrest, Defendant Van Nice, who was the deputy district attorney prosecuting Plaintiff's case, asked the presiding judge to “enter pleas of not guilty for both co-defendants.” Defendant Hartman entered a plea of not guilty on behalf of Plaintiff without advising Plaintiff of his rights, asking Plaintiff how he intended to plead, or obtaining Plaintiff's consent.

         At some point Defendant Van Nice offered Plaintiff a plea deal that Plaintiff characterizes as an attempt to extort Plaintiff and “to cause fear, coercion, threat, and duress through use of threat of intimidation.” Compl. 6. On or about June 26, 2018, Defendant Van Nice stated in open court that “both co-defendants un-mercilessly beat Mr. Martinez.” On November 14, 2018, Plaintiff filed a motion “to Dismiss with prejudice challenging lack of personal (personam) and subject matter jurisdiction.” On November 16, 2018, Defendant Hartman denied Plaintiff's motion “without providing written proof of evidence of jurisdiction on the record.” On November 29, 2018, Plaintiff issued a “Notice of Fault in Dishonor with Opportunity to Cure” “granting four (4) days to Dismiss with prejudice” to Defendants Hartman and Van Nice. On or about November 30, 2018, Plaintiff sent a Writ of Praecipe to the Clerk of the Court[4] demanding the case be dismissed with prejudice for “lack of jurisdiction and failing to follow due process of law.”


         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 v. United States, 790 F.3d 1143, 1148 n.4 (10th Cir. 2015). The present motions launch both facial and factual attacks on this Court's subject matter jurisdiction; therefore, the Court will accept the Amended Complaint's factual allegations as true for its Rule 12(b)(1) analysis when necessary to analyze a facial subject matter jurisdiction attack.

         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.'” Iqbal, 556 U.S. at 678 (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.'” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” 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).

         III. Treatment of a Pro Se Plaintiff's Complaint

         The Supreme Court has directed courts to hold pro se litigants' pleadings “to less stringent standards than formal pleadings drafted by lawyers.” Tatten v. City & Cty. of Denver, 730 Fed.Appx. 620, 623 (10th Cir. 2018), cert. denied, 139 S.Ct. 826, 202 L.Ed.2d 579 (2019) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). The Tenth Circuit interpreted the Haines rule to mean “that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so.” Id. (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991)). “This liberal-construction rule does not, however, relieve a pro se plaintiff of his burden to present sufficient facts to state a legally cognizable claim, nor will the court act as his advocate and make his arguments for him.” Id. at 624. Accordingly, the court must “not supply additional facts, nor...construct a legal theory for plaintiff that assumes facts that have not been pleaded.” Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)). In addition, the Tenth Circuit instructs that courts must “hold pro se litigants to the requirements of the Federal Rules.” Clark v. Time, Inc., 727 Fed.Appx. 975, 978 (10th Cir. 2018).


         I. Motion to Dismiss by the Erie Defendants

         The Erie Defendants move to dismiss all of Plaintiff's claims for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), and for failure to state a claim for which relief can be granted, pursuant to Rule 12(b)(6). The Defendants argue that the Court lacks subject matter jurisdiction as to any of Plaintiff's state tort law claims under the Colorado Governmental Immunity Act (“CGIA”) and that Defendant Erie Police Department is not an entity amenable to suit. The Defendants continue that Plaintiff's pleading is deficient because Plaintiff fails to state a cognizable RICO claim, he fails to state any cognizable constitutional claim, the individually named police Defendants are entitled to qualified immunity, and Plaintiff fails to plead facts sufficient to allege a claim against Defendant Town of Erie under Monell v. Dept. of Soc. Servs. Of the City, 436 U.S. 658 (1978). In their Reply, Defendants also argue that Plaintiff's Complaint ...

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