United States District Court, D. Colorado
ORDER DISMISSING CASE
D. Domenico, United States District Judge.
Vincent Gabriel, proceeding pro se, filed this action under
42 U.S.C. § 1983 seeking damages for alleged violations
of his First, Fifth, Eighth, Ninth, and Fourteenth Amendment
rights, as well as under several state-law tort theories.
Before the Court are motions to dismiss by all Defendants
(Docs. 20, 34), which are GRANTED; his
objection to the most recent order by Magistrate Judge Tafoya
(Doc. 35), which is OVERRULED; and his
second motion for Magistrate Judge Tafoya to recuse herself
(Doc. 36), which is DENIED as moot. The
Complaint is DISMISSED WITH PREJUDICE.
allegations of the Complaint (Doc. 1) are treated as true for
purposes of assessing the motion to dismiss. See Wilson
v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013).
the events of this case, Plaintiff Vincent Gabriel was
falsely arrested for shoplifting at a Wal-Mart. On December
16, 2018, he filed a petition in the Colorado District Court
for El Paso County to expunge or seal his arrest and criminal
records pursuant to Colo. Rev. Stat. § 24-72-702. On
February 27, 2019, Defendant District Attorney Daniel H. May
objected to the petition, arguing that
Sealing the record would violate the plea agreement in the
underlying criminal case, a part of which plea agreement
included [Mr. Gabriel's] express waiver of the right to
seal. Paragraph 18 of the Plea Agreement included a waiver of
all sealings rights. This waiver would be stricken, however,
if the Petitioner completed both the Veterans Trauma Court
program as well as the approved aftercare program, pursuant
to paragraph 1c of the Stipulation for Deferred Judgment and
Sentence. While the Petitioner completed Veterans Trauma
Court, the Petitioner did not complete the aftercare program.
(Doc. 1-1, at 8.) On March 1, 2019, Colorado District Court
Judge David Lee Shakes denied the petition because it would
violate Mr. Gabriel's plea agreement. (Id. at
10.) And in fact, Mr. Gabriel did not complete the aftercare
program required by his plea agreement, a fact he has
supported by affidavit. Mr. Gabriel believes his arrest, Mr.
May's objection to his petition, and Judge Shakes's
order were racially motivated. (Doc. 1 ¶¶ 14, 16,
Gabriel does not allege any conduct by the remaining
Defendants. He simply asserts, on information and belief,
that Gwen Prator is Judge Shakes's clerk; and David
Guest, John Parcell, Becca Kinkin, and Adam Baily are
“employees” of the El Paso County District
Attorney's Office and that they “violated the law
by barring [Mr. Gabriel], a citizen and veteran from sealing
unwarranted records.” (Id. ¶¶ 6,
8-11, 25.) He also states that “clearly, the Defendant
El Paso District Court has failed in its duty to train its
employees.” (Id. ¶ 45.)
August 8, 2019, Mr. Gabriel filed this action seeking $5.4
million in damages under 42 U.S.C. § 1983 for alleged
violations of his First, Fifth, Eighth, Ninth, and Fourteenth
Amendment rights, as well as under several state-law tort
theories. He also requests injunctive relief. The case was
drawn to the undersigned, who referred it to Magistrate Judge
Tafoya for preliminary matters.
August 8, 2019, Mr. Gabriel also moved for the Court to
appoint him pro bono counsel. (Doc. 4.) On September 10,
Magistrate Judge Tafoya granted Judge Shakes and the El Paso
County Combined Courts a forty-two-day extension to respond
to the Complaint. (Docs. 13, 14, 15.) On September 11,
without an order from the Court, Mr. Gabriel renewed his
motion for counsel. (Doc. 17.) On September 12, Defendants
May, Guest, Percell,  Kinkin, and Bailey moved to dismiss. (Doc.
20.) On September 16, Magistrate Judge Tafoya denied the
motion for counsel, to which Mr. Gabriel objected. (Docs. 23,
24.) He also sought the recusal of Magistrate Judge Tafoya.
(Doc. 24.) On October 15, the Court overruled the objection.
October 17, 2019, after his response deadline had already
passed, Mr. Gabriel moved for a sixty-day extension of time
to respond to the motion to dismiss. (Doc. 30.) Magistrate
Judge Tafoya granted the motion in part, permitting Mr.
Gabriel to respond by November 12. On October 24, Defendants
El Paso County Combined Courts, Gwen Prator, and Judge Shakes
moved to dismiss. (Doc. 34.)
November 1, Mr. Gabriel filed another objection, in which he
again sought the sixty days to respond to the motions to
dismiss; again requested counsel and a stay of the
proceedings pending the appointment of counsel; and sought
permission to amend the pleadings, apparently to revise
portions of his affidavit and the Complaint related to the
aftercare program. (See Doc. 35.) The same day, he
filed a second motion for the recusal of Magistrate Judge
Tafoya. (Doc. 36.) More than ninety days have passed since
the first motion to dismiss was filed (and thirty days after
his ordered deadline), but Mr. Gabriel has not responded to
either motion to dismiss.