Carbajal v. Warner et al

Filing 390

ORDER CONCERNING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE. The Order and Recommendation of United States Magistrate Judge 369 filed 8/29/2012, respectfully is REJECTED to the extent the magistrate judge recommends that the plaintiffs Fourt eenth Amendment procedural due process claim be dismissed based on the conclusion that the allegations in the complaint indicate that the plaintiff had an adequate post-deprivation state remedy for the deprivation of liberty he alleges in his complai nt. On the issue described in paragraph one (1), above, the objections stated in the plaintiffs Contemporaneous Objection to the Magistrates Order and Recommendation 382 filed 9/17/2012 are SUSTAINED. Otherwise, the objections stated in the plain tiffs ContemporaneousObjection to the Magistrates Order and Recommendation 382 filed 9/17/2012 are OVERRULED. The Delta Defendants Joint Motion To Dismiss Plaintiffs ThirdAmended Complaint 271 filed 2/6/2012, is GRANTED in part and DENIED. The Delta Sheriff-Deputies Motion To Dismiss Plaintiffs Third Amended Complaint 272 filed 2/6/2012, is DENIED. The Delta Prosecutors Motion To Dismiss Motion To Dismiss Plaintiffs Third Amended 273 filed 2/6/2012, is GRANTED. The Board of County Commissioners of Delta Countys Motion To Dismiss Plaintiffs Third Amended Complaint 274 filed 2/6/2012, is GRANTED. The Delta Sheriff-Deputies Motion To Dismiss Plaintiffs Third Amended Complaint 272 filed February 6, 2012, is DENIED as to the p laintiffs conspiracy claim under 42 U.S.C. § 1983. The Delta Sheriff-Deputies Motion To Dismiss Plaintiffs Third Amended Complaint 272 filed February 6, 2012, is DENIED as to the plaintiffs Fourteenth Amendment substantive due process claim. The Delta Sheriff-Deputies Motion To Dismiss Plaintiffs Third Amended Complaint 272 filed 2/6/62012, is DENIED as to the plaintiffs Fourteenth Amendment procedural due process claim. The Delta Defendants Joint Motion To Dismiss Plaintiffs Third Am ended Complaint 271 filed 2/6/2012, is DENIED. The Delta Defendants Joint Motion To Dismiss Plaintiffs Third Amended Complaint 271 filed 2/6/2012, is GRANTED. Defendants Myrl Serra, Sherri Price, Unknown Representative (Patricia Kramer Estate), and Board of County Commissioners of Delta County, Colorado are DROPPED as defendants in this case, and the caption shall be AMENDED accordingly. By Judge Robert E. Blackburn on 9/24/2012.(cmacd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 10-cv-02862-REB-KLM
DEAN CARBAJAL,
Plaintiffs,
v.
MYRL SERRA, in his individual capacity, et al.,
Defendants.

ORDER CONCERNING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following:(1) the Delta Defendants’ Joint
Motion To Dismiss Plaintiff’s Third Amended Complaint [#271]1 filed February 6,
2012; (2) the Delta Sheriff-Deputies’ Motion To Dismiss Plaintiff’s Third Amended
Complaint [#272] filed February 6, 2012; (3) the Delta Prosecutors’ Motion To
Dismiss Plaintiff’s Third Amended Complaint [#273] filed February 6, 2012; (4) the
Board of County Commissioners of Delta County’s Motion To Dismiss Plaintiff’s
Third Amended Complaint [#274] filed February 6, 2012; and (5) the Order and
Recommendation of United States Magistrate Judge [#369] filed August 29, 2012.
The plaintiff filed responses [#303, #304, #305] to the motions, and the defendants filed
replies [#327, #328, #329, #330]. The plaintiff filed objections [#382] to the

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“[#271]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

recommendation.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which the plaintiff objects and I have considered carefully the
recommendation, the objection, and the applicable case law. Because the plaintiff is
proceeding pro se, I have construed his pleadings and other filings more liberally and
held them to a less stringent standard than formal pleadings drafted by lawyers. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Andrews v. Heaton, 483 F.3d 1070,
1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The factual allegations that are the basis of the complaint present a series of
events that took place over several years. For the sake of clarity, I summarize the
allegations briefly. On August 30, 2001, the Delta County District Court sentenced the
plaintiff, Dean Carbajal, to four years confinement and three years of mandatory parole
for possession of a schedule II controlled substance. Addressing a separate charge of
sexual assault, the court imposed a deferred judgment with the statutory maximum of
four years of supervision. The court treated the deferred judgment supervision as
beginning when Mr. Carbajal was released from prison on July 26, 2004. After several
intervening events, the state district court ordered Mr. Carbajal’s deferred judgment
supervision to be restarted and to run for an additional four year period, from July 14,
2006, through July 14, 2010.
In April of 2007, the prosecution filed a petition to revoke Mr. Carbajal’s deferred
judgment. Mr. Carbajal failed to appear at a hearing set on the petition and, ultimately,
he was arrested in August of 2007. Mr. Carbajal challenged the lengthy continuation of
his deferred judgment supervision and his incarceration based on the violation alleged
in April of 2007. Ultimately, the Colorado Supreme Court ruled that Mr. Carbajal’s
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deferred judgment supervision “began on August 30, 2001 and ended by operation of
law on August 30, 2005.” People v. Carbajal, 198 P.3d 102, 106 (Colo. 2008). In the
present case, Mr. Carbajal asserts a variety of claims against numerous defendants
based on his treatment by authorities in Delta County, Colorado from 2005 to 2010.
The motions to dismiss addressed in the recommendation of the magistrate
judge were filed by various defendants associated with Delta County, Colorado. Those
defendants are Myrl Serra, Sherri Price, Unkown Representative (Patricia Kramer
estate), Fred McKee, Bill Railey, Chris Weldon, Benjamin Schroeder, and the Board of
County Commissioners of Delta County, Colorado (BOCC). I will refer to this group as
the Delta Defendants. There are sub-groups within the Delta Defendants, including the
Prosecutor Defendants, who are of the Myrl Serra, Sherri Price, Unkown
Representative (Patricia Kramer estate). In addition, there is a second sub-group of
individuals associated with the Delta County Sheriff’s Office. This group consists of
Fred McKee, Bill Railey, Chris Weldon, and Benjamin Schroeder. I will refer to this
group as the Sheriff’s Office Defendants.
As detailed below, I respectfully disagree with one conclusion reached by the
magistrate judge. Otherwise, the recommendation is thorough, detailed, and wellreasoned. With the exception of the one conclusion discussed below, I approve and
adopt the recommendation of the magistrate judge.
The magistrate judge concluded that the allegations in Mr. Carbajal’s complaint
are not sufficient to support a Fourteenth Amendment procedural due process claim.
Mr. Carbajal’s procedural due process claim is based on his allegation that certain
defendants fabricated inculpatory evidence by staging a crime scene and/or falsifying
evidence, destroying exculpatory evidence, making misrepresentations to judicial
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officers in an affidavit for an arrest warrant, and by initiating and advocating for the
prosecution of Mr. Carbajal with no reasonable grounds to believe Mr. Carbajal had
committed a crime. In addition, Mr. Carbajal alleges that certain defendants coerced
him to agree to an improper extension of his deferred judgment supervision. Mr.
Carbajal alleges that these actions caused him to be subjected to multiple arrests and
three years of confinement. Complaint [#254], ¶¶ 79 - 82.
I agree with the magistrate judge’s summary of the general contours of a
procedural due process claim.
“Procedural due process ensures that individuals are entitled to
certain procedural safeguards before a state can deprive them of life,
liberty or property.” Becker, 494 F.3d at 918 n.8 (citation omitted).
Procedural due process protects the individual against “arbitrary action of
government.” Wolff v. McDonnell, 418 U.S. 539, 557 (1974). In general,
a plaintiff must make two showings in order to proceed on a procedural
due process claim. See Bartell v. Aurora Pub. Sch., 263 F.3d 1143,
1149 (10th Cir. 2001). First, a plaintiff must demonstrate that he
possesses a protected liberty or property interest. Id. Second, a plaintiff
must show that the procedures utilized which impacted his protected
interest were inadequate under the circumstances. Id. “Where procedural
due process must be afforded because a ‘liberty’ or ‘property’ interest is
within the Fourteenth Amendment’s protection, there must be determined
‘what process is due’ in the particular circumstance.” Smith v. Org. of
Foster Families for Equal. & Reform, 431 U.S. 816, 847 (1977). “The
fundamental requirement of due process is the opportunity to be heard ‘at
a meaningful time and in a meaningful manner.’” Mathews v. Eldridge,
424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545,
552 (1965)).
With that background, the magistrate judge concluded that the allegations in Mr.
Carbajal’s complaint do not state a procedural due process claim because those
allegations indicate that Mr. Carbajal had an adequate post-deprivation remedy in state
court. Via that remedy, Mr. Carbajal succeeded in having the extended term of his
deferred judgment supervision overturned by the Colorado Supreme Court.
Recommendation [#369], p. 33. Particularly in the context of a deprivation of property,
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the existence of an adequate post-deprivation remedy in state court may defeat a
Fourteenth Amendment procedural due process claim. See, e.g., Durre v. Dempsey,
869 F.2d 543, 547 (10th Cir. 1989).
Assuming the allegations in the complaint to be true, as I must, Mr. Carbajal’s
appeal to the Colorado Supreme Court is not properly viewed as an adequate postdeprivation remedy, in the context of a Fourteenth Amendment procedural due process
claim. Notably, Mr. Carbajal’s appeal in his state court criminal case resulted in the
reversal of a criminal sanction, Mr. Carbajal’s extended term of deferred judgment
supervision. However, that appeal did not and could not permit Mr. Carbajal to assert a
claim for monetary compensation based on the alleged deprivation of Mr. Carbajal’s
liberty without due process of law. For this reason alone, Mr. Carbajal’s appeal in his
criminal case is not properly seen as an adequate post-deprivation remedy which bars
his assertion of a Fourteenth Amendment due process claim. Therefore, I respectfully
reject the recommendation of the magistrate judge that Mr. Carbajal’s Fourteenth
Amendment procedural due process claim against the Delta Defendants be dismissed
based on the conclusion that the allegations in the complaint indicate that Mr. Carbajal
had an adequate post-deprivation state remedy for the deprivation of liberty he alleges
in his complaint.
On a different basis addressed in the recommendation, I conclude, however, that
the Fourteenth Amendment procedural due process claim must be dismissed as to the
Prosecutor Defendants. Addressing Mr. Carbajal’s Fourteenth Amendment malicious
prosecution claim, as asserted against the Prosecutor Defendants, the magistrate judge
concludes that Mr. Carbajal’s factual allegations against the prosecutor defendants are
naked assertions devoid of factual enhancement. Recommendation [#369], p. 27. Mr.
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Carbajal alleges that the prosecutor defendants “manufactur[ed] inculpatory evidence
that was designed to bring about Mr. Carbajal’s wrongful arrest, prosecution, conviction,
and confinement,” and submitted “false affidavits containing material falsities and
omissions designed to mislead judicial officers.” Third Am. Compl. [#254] at 16. He
alleges further that the Prosecutor Defendants are responsible for drafting and
presenting “false, distorted and perjured statements to judicial officers,” as well as the
“falsification of the record to establish a fraudulent deferred sentence.” Id. at 22. In
addition, Mr. Carbajal alleges the Prosecutor Defendants destroyed “exculpatory
evidence - contracts that support a concurrent sentence, and decision to revoke Mr.
Carbajal’s deferred sentence without jurisdiction or probable cause, based on their false
affidavits containing material falsities and omissions designed to mislead judicial officers
into issuing a warrant for the arrest of Mr. Carbajal.” Id. at 16.
These allegations also are the factual basis for Mr. Carbajal’s Fourteenth
Amendment procedural due process claim against the Prosecutor Defendants. I agree
with the conclusion of the magistrate judge that Mr. Carbajal’s factual allegations
against the prosecutor defendants on these points are naked assertions devoid of
factual enhancement. These factual allegations, therefore, are not sufficient to support
Mr. Carbajal’s Fourteenth Amendment procedural due process claim against the
Prosecutor Defendants. On this basis, I agree with the recommendation of the
magistrate judge that Mr. Carbajal’s Fourteenth Amendment procedural due process
claim against the Prosecutor Defendants be dismissed for failure to state a claim on
which relief can be granted.

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THEREFORE, IT IS ORDERED as follows:
1. That the Order and Recommendation of United States Magistrate Judge
[#369] filed August 29, 2012, respectfully is REJECTED to the extent the magistrate
judge recommends that the plaintiff’s Fourteenth Amendment procedural due process
claim be dismissed based on the conclusion that the allegations in the complaint
indicate that the plaintiff had an adequate post-deprivation state remedy for the
deprivation of liberty he alleges in his complaint;
2. That on the issue described in paragraph one (1), above, the objections
stated in the plaintiff’s Contemporaneous Objection to the Magistrate’s Order and
Recommendation [#382] filed September 17, 2012, are SUSTAINED;
3. That otherwise, the Order and Recommendation of United States
Magistrate Judge [#369] filed August 29, 2012, is APPROVED and ADOPTED as an
order of this court;
4. That otherwise, the objections stated in the plaintiff’s Contemporaneous
Objection to the Magistrate’s Order and Recommendation [#382] filed September
17, 2012, are OVERRULED;
5. That the Delta Defendants’ Joint Motion To Dismiss Plaintiff’s Third
Amended Complaint [#271] filed February 6, 2012, is GRANTED in part and DENIED
in part on the terms specified in this order;
6. That the Delta Sheriff-Deputies’ Motion To Dismiss Plaintiff’s Third
Amended Complaint [#272] filed February 6, 2012, is DENIED on the terms specified
in this order;
7. That the Delta Prosecutors’ Motion To Dismiss Plaintiff’s Third Amended

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Complaint [#273] filed February 6, 2012, is GRANTED;
8. That the Board of County Commissioners of Delta County’s Motion To
Dismiss Plaintiff’s Third Amended Complaint [#274] filed February 6, 2012, is
GRANTED;
9. That under FED. R. CIV. P. 12(b)(6), the plaintiff’s conspiracy claim under 42
U.S.C. § 1983 against defendants Myrl Serra, Sherri Price, and Unknown
Representative (Patricia Kramer estate) (Prosecutor Defendants) and the Board of
County Commissioners of Delta County, Colorado is DISMISSED with prejudice;
10. That under FED. R. CIV. P. 12(b)(6), the plaintiff’s Fourth Amendment
malicious prosecution claim against defendants Myrl Serra, Sherri Price, Unkown
representative (Patricia Kramer estate), Fred McKee, Bill Railey, Chris Weldon,
Benjamin Schroeder, and the Board of County Commissioners of Delta County,
Colorado (Delta Defendants) is DISMISSED with prejudice;
11. That under FED. R. CIV. P. 12(b)(6), the plaintiff’s Fourteenth Amendment
substantive due process claim against defendants Myrl Serra, Sherri Price, Unknown
Representative (Patricia Kramer estate) (Prosecutor Defendants), and Board of County
Commissioners of Delta County, Colorado is DISMISSED with prejudice;
12. That the Delta Sheriff-Deputies’ Motion To Dismiss Plaintiff’s Third
Amended Complaint [#272] filed February 6, 2012, is DENIED as to the plaintiff’‘s
conspiracy claim under 42 U.S.C. § 1983;
13. That the That the Delta Sheriff-Deputies’ Motion To Dismiss Plaintiff’s
Third Amended Complaint [#272] filed February 6, 2012, is DENIED as to the
plaintiff’‘s Fourteenth Amendment substantive due process claim;
14. That the Delta Sheriff-Deputies’ Motion To Dismiss Plaintiff’s Third
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Amended Complaint [#272] filed February 6, 2012, is DENIED as to the plaintiff’‘s
Fourteenth Amendment procedural due process claim;
15. That the Delta Defendants’ Joint Motion To Dismiss Plaintiff’s Third
Amended Complaint [#271] filed February 6, 2012, is DENIED to the extent the Delta
Defendants seek dismissal of the plaintiff’s Fourteenth Amendment substantive due
process claim, Fourteenth Amendment procedural due process claim, and § 1983
conspiracy claim against defendants Fred McKee, Bill Railey, Chris Weldon, and
Benjamin Schroeder (Sheriff’s Office Defendants);
16. That otherwise, the Delta Defendants’ Joint Motion To Dismiss Plaintiff’s
Third Amended Complaint [#271] filed February 6, 2012, is GRANTED;
17. That under FED. R. CIV. P. 12(b)(6), the plaintiff’s Fourteenth Amendment
procedural due process claim is DISMISSED as to defendants Myrl Serra, Sherri Price,
Unkown Representative (Patricia Kramer estate) (Prosecutor Defendants) and as to the
Board of County Commissioners of Delta County, Colorado;
18. That under FED. R. CIV. P. 12(b)(6), the plaintiff’s supervisory liability claim,
also known as a Monell claim, is DISMISSED with prejudice as to defendants Myrl
Serra, Sherri Price, Unknown Representative (Patricia Kramer estate), Fred McKee, Bill
Railey, Chris Weldon, Benjamin Schroeder, and Board of County Commissioners of
Delta County, Colorado (Delta defendants);
19. That under FED. R. CIV. P. 12(b)(6), the plaintiff’s conspiracy claim under 42
U.S.C. § 1985 is DISMISSED with prejudice as to all defendants;
20. That under FED. R. CIV. P. 12(b)(6), the plaintiff’s conspiracy claim under 42
U.S.C. § 1986 is DISMISSED with prejudice as to all defendants;
21. That under FED. R. CIV. P. 12(b)(6), the plaintiff’s claim for declaratory and
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injunctive relief against defendants Myrl Serra, Sherri Price, Unknown Representative
(Patricia Kramer estate), Fred McKee, Bill Railey, Chris Weldon, Benjamin Schroeder,
and Board of County Commissioners of Delta County, Colorado (Delta defendants) is
DISMISSED with prejudice;
22. That under FED. R. CIV. P. 12(b)(6), the plaintiff’s claim for an award of
attorney fees is DISMISSED to the extent the plaintiff seeks an award of attorney fees
for his pursuit of this case as a plaintiff acting pro se;
23. That under FED. R. CIV. P. 12(b)(6), all claims asserted against defendant
Unknown Representative (Patricia Kramer Estate) are DISMISSED with prejudice;
24. That under FED. R. CIV. P. 12(b)(6), all claims asserted against defendant
Myrl Serra are DISMISSED with prejudice;
25. That under FED. R. CIV. P. 12(b)(6), all claims asserted against defendant
Sherri Price are DISMISSED with prejudice;
26. That under FED. R. CIV. P. 12(b)(6), all claims asserted against defendant
Board of County Commissioners of Delta County, Colorado are DISMISSED with
prejudice; and
27. That defendants Myrl Serra, Sherri Price, Unknown Representative (Patricia
Kramer Estate), and Board of County Commissioners of Delta County, Colorado are
DROPPED as defendants in this case, and the caption shall be AMENDED accordingly.
Dated September 24, 2012, at Denver, Colorado.
BY THE COURT:

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