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Gabriel v. El Paso Combined Courts

United States District Court, D. Colorado

December 17, 2019

VINCENT GABRIEL, Plaintiff,
v.
EL PASO COMBINED COURTS, DAVID LEE SHAKES, individually and in his official capacity as Judge of El Paso Combined Courts, GWEN PRATOR, individually and as employee of David Shakes, DANIEL MAY, individually and in his official capacity as District Attorney, DAVID GUEST, individually and as an employee, JOHN PARCELL, as an employee, BECCA KINIKIN, as an employee, and ADAM BAILEY, individually and as an employee, Defendants.

          ORDER DISMISSING CASE

          Daniel D. Domenico, United States District Judge.

         Plaintiff 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

         The 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).

         Before 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.[1] Mr. Gabriel believes his arrest, Mr. May's objection to his petition, and Judge Shakes's order were racially motivated. (Doc. 1 ¶¶ 14, 16, 18, 22.)

         Mr. 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.)

         PROCEDURAL HISTORY

         On 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.

         On 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, [2] 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. (Doc. 29.)

         On 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.)

         On November 1, Mr. Gabriel filed another objection, in which he again sought the sixty days to respond to the motions to dismiss;[3] 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.

         MOTIONS ...


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