Timothy John Kennedy v. Mark Finely, et al

Filing 14

ORDER. The County Defendants Motion To Dismiss Pursuant to Fed.R.Civ.P.12(b)(6) 6 filed 6/1/2011, is GRANTED IN PART and DENIED IN PART. Plaintiffs Request for Oral Arguments on the County Defendants Motion To Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) 13 filed 7/19/2011, is DENIED. defendant, Sheriff Terry Maketa, is DROPPED as a named party to this action, and the case caption AMENDED accordingly. By Judge Robert E. Blackburn on 7/28/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 11-cv-00967-REB-KMT
TIMOTHY JOHN KENNEDY,
Plaintiff,
v.
MARK A. FINLEY,
ERNEST ROGER PEELE,
SHERIFF TERRY MAKETA,
SHERIFF JOHN WESLEY ANDERSON,
EL PASO COUNTY SHERIFF’S OFFICE, and
UNITED STATES OF AMERICA,
Defendants.

ORDER RE: MOTION TO DISMISS
Blackburn, J.
The matters before me are (1) County Defendants’ Motion To Dismiss
Pursuant to Fed.R.Civ.P. 12(b)(6) [#6]1 filed June 1, 2011; and (2) plaintiff’s Request
for Oral Arguments on the County Defendants’ Motion To Dismiss Pursuant to
Fed.R.Civ.P. 12(b)(6) [#13] filed July 19, 2011. I find and conclude that oral argument
would not materially assist in the resolution of the substantive motion, and, therefore,
deny the request for such arguments. As for the motion to dismiss itself, I grant the
motion in part and deny it in part.

1

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

I. JURISDICTION
I have subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question).
II. STANDARD OF REVIEW
The motion to dismiss seeks dismissal of claims and defendants under
Fed.R.Civ.P.12(b)(6). When ruling on a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), I must determine whether the allegations of the complaint are sufficient to state
a claim within the meaning of Fed.R.Civ.P. 8(a). I must accept all well-pleaded
allegations of the complaint as true. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992,
997 (10th Cir. 2002). “However, conclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to prevent a motion to dismiss.”
Fernandez-Montes v. Allied Pilots Association, 987 F.2d 278, 284 (5th Cir. 1993);
see also Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002) (“All well-pleaded
facts, as distinguished from conclusory allegations, must be taken as true.”), cert.
denied, 123 S.Ct. 1908 (2003).
I review the complaint to determine whether it “‘contains enough facts to state a
claim to relief that is plausible on its face.’” Ridge at Red Hawk, L.L.C. v. Schneider,
493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). “Thus, the mere
metaphysical possibility that some plaintiff could prove some set of facts in support of
the pleaded claims is insufficient; the complaint must give the court reason to believe
that this plaintiff has a reasonable likelihood of mustering factual support for these

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claims." Id. (emphases in original).2 Nevertheless, the standard remains a liberal one,
and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual
proof of those facts is improbable, and that a recovery is very remote and unlikely.“
Dias v. City and County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quoting
Twombly, 127 S.Ct. at 1965) (internal quotation marks omitted).
III. ANALYSIS
This case arises out of the murders of Jennifer Carpenter and her boyfriend,
Steve Staskiewicz. Carpenter was the victim and key witness in the kidnaping and rape
trial of Charles Stroud and Becky Corkins. Defendant, Detective Mark A. Finley, was
assigned to investigate the murders.
During the course of his investigation, Finley had reason to believe that certain
parties were solicited to murder Ms. Carpenter and Mr. Staskiewicz. Particularly,
plaintiff alleges that, prior to the murders, the El Paso County Sheriff’s Office intercepted

2

Twombly rejected and supplanted the “no set of facts” language of Conley v. Gibson, 355 U.S.
41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Tenth Circuit clarified the meaning of the “plausibility”
standard:
“plausibility” in this context must refer 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.” The allegations
must be enough that, if assumed to be true, the plaintiff plausibly (not just
speculatively) has a claim for relief.
This requirement of plausibility serves not only to weed out claims that do
not (in the absence of additional allegations) have a reasonable prospect
of success, but also to inform the defendants of the actual grounds of the
claim against them. “Without some factual allegation in the complaint, it
is hard to see how a claimant could satisfy the requirement of providing
not only ‘fair notice’ of the nature of the claim, but also ‘grounds' on which
the claim rests.”
Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008) (quoting Twombly, 127 S.Ct. at 1974)
(internal citations and footnote omitted).

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two letters, one written by Stroud and the other by Charles Anthony Tate, purportedly
outlining a plan and solicitation to murder Carpenter. Plaintiff maintains that although
Finley was aware of these letters, he never provided them to the district attorney.
Moreover, during the course of his investigation, Finley allegedly conducted an
unconstitutional custodial interview and an involuntary search of plaintiff’s home. Plaintiff
contends that Finley utilized the information illegally obtained to secure a search
warrant for his home and car, during the course of which he found and seized a .380
caliber handgun and compatible ammunition, the same caliber as the weapon used to
kill Carpenter and Staskiewicz.
Kennedy complained about Finley’s conduct to the El Paso County Sheriff’s
Office, and thereafter, the investigation apparently languished. Finley left the Sheriff’s
Office for some unspecified period of time, but later returned when defendant John
Wesley Anderson was elected sheriff. Following his return, Finley was reassigned to
the Carpenter/Staskiewicz murders.
Plaintiff alleges that, because of his prior complaints, Finley harbored resentment
toward him and set out to build a case against him. To that end, he allegedly hired
defendant Ernest Roger Peele of the FBI to match the lead contents of the bullets used
to kill Carpenter and Staskiewicz to unfired bullets found in the search of plaintiff’s home
and car. Plaintiff claims that the scientific validity of this practice is suspect and
unreliable. Nevertheless, Peele purportedly confirmed that the bullets that killed
Carpenter and Staskiewicz came from the same box of ammunition as those that were
obtained from plaintiff’s home.

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Ultimately, plaintiff alleges that, based on the illegal search of his home and car,
the suppression of the Stroud/Tate letters, and the opinion of Agent Peele regarding the
comparative bullet lead analysis, the District Attorney made the decision to prosecute
him for the Carpenter/Staskiewicz murders. On August 8, 1995, plaintiff was found
guilty on two counts of first degree murder and was sentenced to two consecutive life
terms without the possibility of parole.
After eleven years in prison, Mr. Kennedy was granted a post-conviction hearing
pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. As a result of that
hearing, Mr. Kennedy’s conviction for both murders was set aside, and a new trial was
ordered on April 21, 2009. The government has appealed that decision to the Colorado
Court of Appeals, and that appeal remains pending at this time. In the meantime,
plaintiff filed this lawsuit, bringing claims for malicious prosecution against Finley, Peele,
Anderson, and the present El Paso County Sheriff, Terry Maketa, in both their official
and individual capacities, as well as a claim for municipal liability against the El Paso
County Sheriff’s Office.3
The county defendants now seek to dismiss for failure to state a claim pursuant
to Fed.R.Civ.P. 12(b)(6).4 They first contend that plaintiff’s malicious prosecution claim

3

Although plaintiff also appears to allege a claim of supervisory liability against the United States
based on Peele’s actions, that claim is not before me. Moreover, although defendants seek to dismiss
plaintiff’s Fourth and Fifth Amendment claims as time-barred, plaintiff clarifies in his response that he
invokes these constitutional precepts only as context for his malicious prosecution and municipal liability
claims. Based on that representation, that portion of defendants’ motion is denied as moot.
4

I note that although defendants do not list Anderson among the named “County Defendants”
they identify as bringing the motion to dismiss, they refer to Anderson and include argument relevant to
the claims against him throughout the motion. In addition, the attorney who filed the motion has entered
an appearance on behalf of Anderson.

5

has not yet accrued because, although, he was granted a new trial, the government’s
appeal of that decision prevents plaintiff from demonstrating that the prior criminal
proceeding has terminated in his favor, an essential element of any malicious
prosecution claim. See Hewitt v. Rice, 154 P.2d 408, 411 (Colo. 2007).
Defendants’ arguments implicate the “hoary principle that civil tort actions are not
appropriate vehicles for challenging the validity of outstanding criminal judgments”
stated in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).
The Heck rule provides that
in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas
corpus.
Heck, 114 S.Ct. at 2372 (emphasis added, footnote omitted). Ultimately, the Heck rule
delays what would otherwise be the accrual date of a tort action until the setting aside of
an extant conviction. See id. at 2372-73.
Nevertheless, defendants miss the mark in suggesting that plaintiff’s claims have
not yet accrued because those claims necessarily would impugn the validity of evidence
that might be introduced in any retrial of the charges. Although the government has
appealed the state district court’s order granting plaintiff’s motion for new trial, there can
be no question but that his underlying conviction has been “declared invalid by a state
tribunal authorized to make such determination.” Id. at 2372. Regardless whether the

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government succeeds in its appeal and, if so, ultimately secures a new conviction
against plaintiff in light of the extant evidence, it is clear that, at present, there is no
presently outstanding criminal conviction as to which the rule of Heck could be applied.5
The Supreme Court has refused to apply the rule to an anticipated future conviction,
calling it “a bizarre extension of Heck.” Wallace v. Kato, 549 U.S. 384, 393, 127 S.Ct.
1091, 1098, 166 L.Ed.2d 973 (2007). Therefore, defendants’ motion to dismiss these
claims under Heck must be denied.
Alternatively, defendants argue that plaintiff’s malicious prosecution claim against
Maketa in his individual capacity must be dismissed because Maketa did not have the
requisite personal participation. I agree. See Foote v. Spiegel, 118 F.3d 1416, 142324 (10th Cir. 1997); Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir. 1996). Maketa
was sworn into office on January 14, 2003, more than five and a half years after plaintiff
was convicted. Given this lapse of time, it is clear that Maketa could not have had any
personal involvement whatsoever in the alleged constitutional violations that inform
plaintiff’s malicious prosecution claim. Moreover, plaintiff’s allegations that Maketa
failed to discipline Finley for his alleged indiscretions years after the fact is far too
attenuated a thread on which to demonstrate the requisite personal involvement of a
superior. Thus, defendants’ motion to as to this claim is well taken and will be granted.
Plaintiff also sues Anderson and Maketa in their official capacities. A suit against
an individual officer of a government agency in his or her official capacity is really “only
another way of pleading an action against an entity of which an officer is an agent.”

5

Indeed, plaintiff is out of prison on bail pending determination of the government’s appeal.

7

Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985)
(quoting Monell v. New York City Police Dept. of Social Services, 436 U.S. 658, 690,
n. 55, 98 S.Ct. 2018, 2035 n.55, 56 L.Ed.2d 611 (1978)) (internal quotation marks
omitted). “[A] plaintiff seeking to recover on a damages judgment in an official-capacity
suit must look to the government entity itself.” Id. As plaintiff seeks only damages and
an award of attorney fees by this suit, and has named as the El Paso County Sheriff’s
Office as an additional defendant, the official capacity claims against Anderson and
Maketa must be dismissed
Finally, defendants seek to dismiss plaintiff’s municipal liability claims against the
El Paso County Sheriff’s Office. “[A] municipality may not be held liable under § 1983
solely because its employees inflicted injury on the plaintiff. Rather, to establish
municipal liability, a plaintiff must show 1) the existence of a municipal policy or custom,
and 2) that there is a direct causal link between the policy and the injury alleged.”
Bryson v. City of Oklahoma City, 627 F.3d 784, 789 (10th Cir. 2010, cert. denied, –
S.Ct. –, 2011 WL 1481307 (June 20, 2011) (citation and internal quotation marks
omitted). Plaintiff alleges that Anderson, knowing of plaintiff’s complaints regarding
Finley’s conduct of the prior investigation and aware of the existence of the allegedly
exculpatory Stroud/Tate letters, nevertheless assigned Finley to the renewed
investigation when he rejoined the force. (Complaint ¶¶ 51-53 [#1], filed April 12,
2011.)6 A policy or custom may be shown by evidence that a final policymaker ratified a

6

However, and despite plaintiff’s suggestion in his response that, if Anderson was unaware of
Finley’s actions, he may be liable for failure to supervise or train, any such permutation of his municipal
liability claim is not supported by the allegations of the complaint as currently drafted.

8

subordinate’s allegedly unconstitutional acts. Brammer-Hoelter v. Twin Peaks
Charter Academy, 602 F.3d 1175, 1189 (10th Cir. 2010).7 The allegations of the
complaint are sufficient to make a plausible claim on that basis. Moreover, the
allegations of the complaint suggest a direct causal link between Finley’s actions and
Anderson’s staffing decisions, on the one hand, and plaintiff’s conviction, on the other.
Thus, defendants’ motion to dismiss the municipal liability claim against the El Paso
County Sheriff’s Office will be denied.8
THEREFORE, IT IS ORDERED as follows:
1. That County Defendants’ Motion To Dismiss Pursuant to Fed.R.Civ.P.
12(b)(6) [#6] filed June 1, 2011, is GRANTED IN PART and DENIED IN PART;
2. That the motion is GRANTED as follows:
a. that plaintiff’s claim for malicious prosecution against defendant, Sheriff
Terry Maketa, in his individual capacity, is DISMISSED WITH
PREJUDICE;
b. That plaintiff’s claims for malicious prosecution against defendants,
Sheriff Terry Maketa and Sheriff John Wesley Anderson, in
their official capacities, are DISMISSED WITH PREJUDICE;

7

Neither party seems to question the notion that the El Paso County Sheriff is a final policymaker
with respect to decisions regarding what cases to investigate and how such investigations should be
staffed. See County of Adams v. Hibbard, 918 P.2d 212, 219 (Colo. 1996) (“To be a policymaker, the
governmental official or officials must be responsible for establishing final policy with respect to the subject
matter in question.”) (citation and internal quotation marks omitted); see also § 30-10-516, C.R.S. (stating
that in discharge of their duty to keep and preserve the peach, sheriffs “may call to their aid such person or
their county as they may deem necessary”).
8

Contrariwise, there is no such direct link between Maketa’s alleged failure to discipline Finley
since his investiture as El Paso County Sheriff in 2003 and plaintiff’s injuries, and, thus, no municipal
liability may be premised on the alleged actions or inaction of Maketa.

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3. That otherwise, the motion is DENIED;
4. That at that time judgment enters, judgment SHALL ENTER on behalf of
defendant, Sheriff Terry Maketa, against plaintiff, Timothy John Kennedy, as to all
claims for relief and causes of action asserted against him in this lawsuit; provided, that
the judgment as to these claims shall reflect their dismissal with prejudice;
5. That at the time judgment enters, judgment SHALL ENTER on behalf of
defendant, Sheriff John Wesley Anderson, against plaintiff, Timothy John Kennedy, as
to plaintiff’s claim for malicious prosecution against Anderson in his official capacity;
provided, that the judgment as to this claim shall reflect its dismissal with prejudice;
6. That plaintiff’s Request for Oral Arguments on the County Defendants’
Motion To Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) [#13] filed July 19, 2011, is
DENIED; and
7. That defendant, Sheriff Terry Maketa, is DROPPED as a named party to this
action, and the case caption AMENDED accordingly.
Dated July 28, 2011, at Denver, Colorado.
BY THE COURT:

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