Handy v. City of Sheridan et al

Filing 102

ORDER. ORDERED that Magistrate Judge Tafoya's Recommendation 93 is AFFIRMED IN PART and REJECTED IN PART. ORDERED that Handys Motion To Amend Complaint 60 is GRANTED IN PART and DENIED IN PART ORDERED that the defendants Motion To Dismiss For Lack Of Subject Matter Jurisdiction 19 is GRANTED IN PART and DENIED IN PART. ORDERED that the Defendants' Objections To Recommendations Of United States Magistrate Judge 97 are SUSTAINED by Judge Wiley Y. Daniel on 03/26/13.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Criminal Action No. 12-cv-01015-WYD-KMT
Wyatt T. Handy, Jr.,
Plaintiff,
v.
CITY OF SHERIDAN;
DET. KRISTINE BRYANT; in her individual and official capacity, and,
OFF. MIKE MONTOYA; in his individual and official capacity,
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
THIS MATTER is before the Court in connection with the City of Sheridan,
Detective Kristine Bryant, and Officer Mike Montoya’s (collectively “the defendants”)
Sheridan Defendants’ Motion To Dismiss For Lack Of Subject Matter Jurisdiction [ECF
No. 19], and plaintiff, Wyatt T. Handy, Jr.’s, Motion To Amend Complaint [ECF No. 60].
These motions were referred to Magistrate Judge Tafoya [ECF No. 8]. On February 15,
2013, Magistrate Tafoya issued a Recommendation [ECF No. 93] regarding the
defendants’ Motion to Dismiss [ECF No. 19] and Handy’s Motion To Amend Complaint
[ECF No. 60]. For the reasons discussed below, Magistrate Judge Tafoya’s
Recommendation is AFFIRMED IN PART and REJECTED IN PART. The
Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1), FED.
R. CIV. P. 72(b), D.C.COLO.LR. 72.1.

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BACKGROUND
This suit arises out of events connected to plaintiff, Wyatt Handy, Jr.’s, February
10, 2010, arrest by Sheridan Police Department (“SPD”) personnel and subsequent
criminal charges faced as a result of that arrest.
On January 19, 2010, Handy’s ex-wife, Lacy Jo Smith, entered SPD and spoke
with Detective Kristine Bryant about an alleged incident regarding Handy. Smith told
Detective Bryant that Handy had followed her car around town and violently rammed
her car twice. Allegedly, the second ramming occurred while Smith was in a stopped
position at a red light and was so forceful that Smith’s car entered the intersection after
being struck by Handy’s car. According to Smith, her two children and James Burks
were also in the car at the time of the alleged ramming.
Detective Bryant and Officer Mike Montoya inspected Smith’s car and found only
minor damage e.g., a broken tail light. On February 1, 2010, Smith contacted Detective
Bryant and stated that the alleged violent rammings terminated her pregnancy.
Detective Bryant then submitted an affidavit in support of an arrest warrant for Handy on
four counts of second degree attempted murder and other felonies. SPD arrested
Handy on February 10, 2010, and a protection order was subsequently issued in
connection with charges filed against him.
On May 28, 2010, Detective Bryant initiated charges against Handy for allegedly
violating the protection order. Detective Bryant allegedly submitted an affidavit that
included false statements that Handy violated the protection order by contacting Smith
in February and March of 2010. According to Handy, he could not have violated the
protection order at that time because the protection order was not issued until April 23,

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2010.
On June 16, 2010, Handy attended a preliminary hearing for his second degree
attempted murder charges. Handy alleges that Detective Bryant gave false testimony
and misrepresented the facts surrounding the alleged violent ramming. On June 16,
2011, Handy attended a second preliminary hearing held to determine whether probable
cause existed to increase his second degree attempted murder charges to first degree
extreme indifference attempted murder. Handy alleges that Detective Bryant and
Officer Montoya gave false testimony and misrepresented the facts surrounding the
alleged violent ramming in order to establish probable cause for the first degree extreme
indifference attempted murder charges. The judge found that probable cause existed,
and Handy was charged with first degree extreme indifference attempted murder.
According to Handy, immediately after the hearing, a bailiff informed Handy that he had
a pending charge for violating the protection order that was issued against him. This
was the first time Handy became aware of the pending protection order violation.
Handy’s trial commenced on August 16, 2011, and on August 18, 2011, a jury
acquitted him of all charges. However, Handy was arrested that same day for the
alleged protection order violation. On December 7, 2011, the protection order violation
charge was dropped.
Handy filed this suit against the defendants on April 16, 2012, alleging seven
claims under 42 U.S.C. § 19831 and five Colorado state law tort claims: (1) two
1

Pursuant to 42 U.S.C. § 1983:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,

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malicious prosecution claims; (2) false arrest / false imprisonment; (3) gross negligence;
and, (4) intentional infliction of emotional distress. On June 6, 2012, the defendants
filed a Motion to Dismiss For Lack Of Subject Matter Jurisdiction [ECF No. 19], arguing
that this Court lacks subject matter jurisdiction over Handy’s tort claims because he did
not provide timely notice of this suit to the defendants pursuant to the Colorado
Governmental Immunity Act (“CGIA”), Colorado Revised Statues § 24-10-101, et seq.
On November 7, 2012, Handy filed a Motion to Amend Complaint [ECF No. 60], seeking
to add five additional defendants and seven new claims. Handy seeks to add the
following defendants: (1) Officer Robert Arrellano; (2) Officer Nancy Schwan; (3) his exwife, Lacy Jo Smith; (4) James C. Burk; and, (5) Andrew Glaviano. Handy seeks to add
the following claims: (1) civil conspiracy; (2) negligence; (3) negligent supervision; (4)
respondeat superior; (5) failure to train and supervise; (6) defamation; and, (7) violations
of Brady v. Maryland, 373 U.S. 83 (1963)2.
On February 15, 2013, Magistrate Judge Tafoya issued a Recommendation
[ECF No. 93] regarding the defendants’ Motion To Dismiss For Lack of Subject Matter
Jurisdiction [ECF No. 19] and Handy’s Motion to Amend Complaint [ECF No. 60].
Magistrate Judge Tafoya recommends that both motions be denied in part and granted
in part. On March 1, 2013, the defendants filed Objections To Recommendations Of
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable. For
the purposes of this section, any Act of Congress applicable exclusively
to the District of Columbia shall be considered to be a statute of the
District of Columbia.
2

In Brady, the United States Supreme Court held that “suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87.

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United States Magistrate Judge [ECF No. 97]. Below, I will discuss and analyze
Magistrate Judge Tafoya’s recommendations regarding the pending motions and state
whether or not I concur with the recommendations.
ANALYSIS
A. Legal Standard
Because the defendants filed objections to Magistrate Judge Tafoya’s
Recommendation [ECF No. 97]], I must review “de novo any part of the magistrate
judge’s disposition that has been properly objected to.” FED. R. CIV. P. 72(b)(3); see 28
U.S.C. § 636(b)(1)(C); Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991)
(citations omitted) (“De novo review is statutorily and constitutionally required when
written objections to a magistrate’s report are timely filed with the district court”). I must
“consider relevant evidence of record and not merely review the magistrate judge’s
recommendation.” In re Griego, 64 F.3d 580, 584 (10th Cir. 1995) (citation omitted).
Further, I am given discretion whether to “accept, reject, or modify” the recommended
disposition made by the Magistrate Judge. FED. R. CIV. P. 72(b)(3); see 28 U.S.C. §
636(b)(1)(C).
B. The Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction
1. Legal Standard
FED. R. CIV. P. 12(b)(1) allows a federal court to dismiss a complaint for lack of
subject matter jurisdiction. When analyzing a motion to dismiss pursuant to Rule
12(b)(1), a court determines whether it has authority to adjudicate the action, rather than
seeking to resolve the merits of the action. “[A] party invoking federal jurisdiction bears
the burden of establishing such jurisdiction.” Radil v. Sanborn W. Champs, Inc., 384

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F.3d 1220, 1224 (10th Cir. 2004). “Where a party attacks the factual basis for subject
matter jurisdiction, the court does not presume the truthfulness of factual allegations in
the complaint, but may consider evidence to resolve disputed jurisdictional facts.” Id. “If
the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.” FED. R. CIV. P. 12(h)(3).
2. The Colorado Governmental Immunity Act (“CGIA”), Colo. Rev. Stat. §
24-10-101, et seq.
The defendants argue that pursuant to the CGIA, this Court does not have
subject matter jurisdiction over Handy’s tort claims.
Pursuant to the CGIA:
It is the intent of this article to cover all actions which lie in
tort or could lie in tort regardless of whether that may be the
type of action or the form of relief chosen by the claimant. No
public entity shall be liable for such actions except as
provided in this article, and no public employee shall be
liable for injuries arising out of an act or omission occurring
during the performance of his or her duties and within the
scope of his or her employment, unless such act or omission
was willful and wanton, except as provided in this article.
Nothing in this section shall be construed to allow any action
which lies in tort or could lie in tort regardless of whether that
may be the type of action or the form of relief chosen by a
claimant to be brought against a public employee except in
compliance with the requirements of this article.
COLO. REV. STAT. 24-10-105(1) (emphasis added). The CGIA further provides that a
plaintiff suing a Colorado state public entity or public employee in tort must provide
notice of such claim within 182 days after the date the plaintiff discovered the alleged
injury. Id. at § 24-10-109(1). With respect to notice, the CGIA states, in pertinent part:
(1) Any person claiming to have suffered an injury by a
public entity or by an employee thereof while in the course of
such employment, whether or not by a willful and wanton act
or omission, shall file a written notice as provided in this
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section within one hundred eighty-two days after the date of
the discovery of the injury, regardless of whether the person
then knew all of the elements of a claim or of a cause of
action for such injury. Compliance with the provisions of this
section shall be a jurisdictional prerequisite to any action
brought under the provisions of this article, and failure of
compliance shall forever bar any such action.
(2) The notice shall contain the following:
(a) The name and address of the claimant and the
name and address of his attorney, if any;
(b) A concise statement of the factual basis of the
claim, including the date, time, place, and
circumstances of the act, omission, or event
complained of;
(c) The name and address of any public employee
involved, if known;
(d) A concise statement of the nature and the extent
of the injury claimed to have been suffered;
(e) A statement of the amount of monetary damages
that is being requested.
Id. at §§ 24-10-109(1) and (2) (emphasis added).
On July 1, 2011, Handy wrote a letter to the Sheridan City Attorney’s Office to
inform it of his intention to file this suit. The letter states that:
In accordance with section 24-10-109, C.R.S. 2008; et seq,
Wyatt T. Handy Jr., herein the petitioner, hereby gives notice
of his intent to sue for direct violation of his constitutional
rights under the Fourth & Fourteenth Amendments to the
U.S. Constitution, and various state law claims for false
arrest, [Brady,] false imprisonment, [malicious prosecution,]
negligence, gross negligence, & intentional infliction of
emotional distress. The said lawsuit is being leveled against
Det. Bryant, Off. Montoya, Off. Schwan, Off. Arrellano, of the
Sheridan Police Dept., for the acts and omissions of its
agents, servants & employees, for injuries suffered as a
result of said conduct, and activities directed against the
petitioner.
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ECF No. 25, p. 46. Handy alleges that this letter is sufficient notice for all his claims.
The defendants also argue that COLO. REV. STAT. § 13-17-201 entitles them to
attorney fees for defending this action. The statue states:
In all actions brought as a result of a death or an injury to
person or property occasioned by the tort of any other
person, where any such action is dismissed on motion of the
defendant prior to trial under rule 12(b) of the Colorado rules
of civil procedure, such defendant shall have judgment for
his reasonable attorney fees in defending the action. This
section shall not apply if a motion under rule 12(b) of the
Colorado rules of civil procedure is treated as a motion for
summary judgment and disposed of as provided in rule 56 of
the Colorado rules of civil procedure.
COLO. REV. STAT. § 13-17-201. The defendants argue that because the CGIA bars
Handy’s tort claims, they are entitled to reasonable attorney fees.
3. Magistrate Judge Tafoya’s Recommendation [ECF No. 93]
Magistrate Judge Tafoya held that Handy’s notice is untimely for any claim
arising from Handy’s February 10, 2010, arrest and second degree attempted murder
charges because it was not filed within 182 days of the arrest.3 Thus, Magistrate Judge
Tafoya recommends that the CGIA bars Claims 6 (malicious prosecution), 11 (malicious
prosecution), and 13-15 (false arrest / false imprisonment, gross negligence, and
intentional infliction of emotional distress) to the extent that they relate to incidents
surrounding Handy’s February 10, 2010, arrest. Magistrate Judge Tafoya further held
that this notice is timely, because it was filed within 182 days, for any claim stemming
from information Handy became aware of at his June 16, 2011, preliminary examination
i.e., the first degree extreme indifference attempted murder charges and the protection
order violation charge. Thus, Magistrate Judge Tafoya recommends that the CGIA
3

182 days from Handy’s February 10, 2010, arrest was August 11, 2010.

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does not bar Claims 6 (malicious prosecution), 11 (malicious prosecution), and 13-15
(false arrest / false imprisonment, gross negligence, and intentional infliction of
emotional distress) to the extent they relate to any incidents surrounding Handy’s June
16, 2011, preliminary examination.
Magistrate Judge Tafoya further restricted the scope of Handy’s false arrest /
false imprisonment claim (Claim 13), holding that the CGIA bars the claim to the extent
that it relates to Handy’s August 18, 2011, arrest for the allegedly violating the
protection order. Because Handy was arrested for the alleged violation on August 18,
2011, his July 7, 2011, notice could not logically contain notice of that arrest and any
claims arising from it. Thus, Magistrate Judge Tafoya held that Handy’s false arrest /
false imprisonment claim (Claim 13) can only relate to the events surrounding the June
16, 2011, preliminary examination.
Magistrate Judge Tafoya also held that because Handy’s allegations, if proven
true, could rise to the level of willful and wanton conduct, the CGIA does not
automatically bar Handy’s claims against Detective Bryant and Officer Montoya in their
individual capacities.4 However, Magistrate Judge Tafoya held that because suing
Detective Bryant and Officer Montoya in their official capacities is synonymous with
suing the entity of which they are agents i.e., SPD, the CGIA bars any claims against
them in their official capacity. Kentucky v. Graham, 473 U.S. 159, 167 (1995) (quoting
Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)) (“Official
capacity suits . . . ‘generally represent only another way of pleading an action against an
entity of which an officer is an agent’”).
4

The CGIA’s grant of immunity to public employees is qualified. Thus, if a plaintiff establishes that the
defendant(s) was willful and wanton, the defendant(s) are no longer personally immune from liability
under the CGIA. See COLO. REV. STAT. 24-10-105(1).

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Regarding the defendants’ request for attorney fees pursuant to the CGIA,
Magistrate Judge Tafoya held that because Handy’s tort claims are not dismissed in
their entirety, the defendants are not entitled to attorney fees under the CGIA. See
COLO. REV. STAT. § 13-17-201 (emphasis added) (“In all actions brought as a result of a
death or an injury to person or property occasioned by the tort of any other person,
where any such action is dismissed on motion of the defendant prior to trial under rule
12(b) of the Colorado rules of civil procedure, such defendant shall have judgment for
his reasonable attorney fees in defending the action”).
a. Rejection of Magistrate Judge Tafoya’s
Recommendation
I agree with Magistrate Judge Tafoya with the exception of her recommendation
on Handy’s malicious prosecution claims: Claims 6 and 11. Magistrate Judge Tafoya
held that the CGIA bars these claims to the extent that they relate to Handy’s arrest and
the second degree attempted murder charges, while the CGIA does not bar these
claims to the extent they relate to Handy’s first degree extreme indifference attempted
murder charges and the alleged protection order violation. To the extent that the CGIA
bars Handy’s torts claims for failure to give timely notice, this Court does not have
subject matter jurisdiction over those claims. See COLO. REV. STAT. § 24-10-109(1)
(emphasis added) (“Compliance with the provisions of this section shall be a
jurisdictional prerequisite to any action brought under the provisions of this article, and
failure of compliance shall forever bar any such action”).
The first paragraph under Handy’s first malicious prosecution claim, Claim 6,
states that “[p]aragraphs 1 through 18 are incorporated herein by reference as though
fully set forth.” ECF No. 1, p. 10, ¶ 45. Paragraphs 1 through 18 of Handy’s complaint
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relate to his February 10, 2010, arrest and second degree murder attempted murder
charges. Because Magistrate Judge Tafoya held that the CGIA bars any claims relating
to Handy’s February 10, 2010, arrest and second degree attempted murder charges,
this Court does not have subject matter jurisdiction over Claim 6. Thus, I reject
Magistrate Judge Tafoya’s Recommendation [ECF No. 93] regarding the defendants’
Motion To Dismiss For Lack Of Subject Matter Jurisdiction [ECF No. 19] to that extent.
Therefore, the defendants’ Motion to Dismiss for Lack of Subject Matter
Jurisdiction [ECF No. 19] is GRANTED IN PART and DENIED IN PART. The motion is
GRANTED in that: (1) this Court lacks subject matter jurisdiction over Handy’s tort
claims arising out of his February 10, 2010, arrest and the subsequent second degree
attempted murder charges; and, (2) the CGIA bars Handy’s claims against Detective
Bryant and Officer Montoya in their official capacities. The motion is DENIED in that:
(1) this Court has subject matter jurisdiction over Handy’s tort claims arising out of or in
connection with the June 16, 2011, preliminary hearing i.e., the first degree extreme
indifference attempted murder charges and alleged protection order violation; (2) the
CGIA does not bar Handy’s claims against Detective Bryant and Officer Montoya in their
individual capacities; and, (3) the defendants are not entitled to reasonable attorney
fees pursuant to COLO. REV. STAT. § 13-17-201 because this action is not dismissed.
C. Handy’s Motion to Amend Complaint [ECF No. 60]
FED. R. CIV. P. 15 allows parties to amend and supplement their pleadings.5
5

FED. R. CIV. P. 15 states, in pertinent part:
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading
once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required,

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Because Handy cannot amend his complaint “as a matter of course,” he may only
amend his complaint “with the opposing party’s written consent or the court’s leave.”
FED. R. CIV. P. 15(a)(2). “The court should freely give leave when justice so requires.”
Id. Though the FEDERAL RULES of CIVIL PROCEDURE dictate that courts should grant
amendment freely when justice so requires, the United States Court of Appeals for the
Tenth Circuit has held that its “case law establishes a limitation to this principle: the
district court may dismiss without granting leave to amend when it would be futile to
allow the plaintiff an opportunity to amend his complaint.” Brereton v. Bountiful City
Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (citing Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991)). “A proposed amendment is futile if the complaint, as amended,
would be subject to dismissal.” Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir.
2007) (citation omitted). District courts have “wide discretion to recognize a motion for
leave to amend in the interest of a just, fair, or early resolution of litigation.” Bylin v.
Billings, 568 F.3d 1224, 1229 (10th Cir. 2009) (quoting Calderon v. Kan. Dep’t of Soc. &
Rehab. Servs., 181 F.3d 1180, 1187 (10th Cir. 1991)).
Handy seeks leave to amend his complaint to add parties and claims, and to
clarify certain facts set forth in his original complaint. Handy seeks to add the following
defendants: (1) Officer Robert Arrellano; (2) Officer Nancy Schwan; (3) his ex-wife,
Lacy Jo Smith; (4) James C. Burks; and, (5) Andrew Glaviano. With respect to
additional claims, I adopt Magistrate Judge Tafoya’s statements regarding additional
claims sought by Handy. Magistrate Judge Tafoya stated:
21 days after service of a responsive pleading or 21 days after service of
a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its
pleading only with the opposing party's written consent or the court's
leave. The court should freely give leave when justice so requires.

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Plaintiff also seeks to add five new state-law tort
claims for (1) civil conspiracy against all of the individual
defendants and proposed individual defendants; (2)
negligence against Defendants Bryant and Montoya and
Officers Arellano and Schwan; (3) negligent supervision
against the City of Sheridan, Defendants Bryant and
Montoya, and Officers Arellano and Schwan; (4) respondeat
superior against the City of Sheridan, Defendants Bryant and
Montoya, and Officers Arellano and Schwan; (5) “failure to
train and supervise” against the City of Sheridan and
Defendant Bryant; and (6) defamation against Defendants
Bryant and Montoya, and Ms. Smith and Mr. Burks.
Plaintiff also seeks to amend (1) his § 1983
conspiracy claim so that it is directed at all of the proposed
individual defendants, and (2) his remaining § 1983 claims
so that they are also directed at Officers Arellano and
Schwan. In addition, Plaintiff seeks to add a § 1983 claim
against Defendants Bryant and Montoya and Officers
Arellano and Schwan for violating his Fourteenth
Amendment due process rights under Brady v. Maryland,
373 U.S. 83, 87 (1963). Finally, plaintiff seeks to amend his
Complaint to clarify that there were two preliminary hearings
held in his criminal case.
ECF No. 93, pp. 17-18. Magistrate Judge Tafoya analyzed each claim Handy asserts in
his proposed amended complaint [ECF No. 60-1] in order to determine whether
amendment would futile.
1. Handy’s Proposed Amended Complaint [ECF No. 60-1]
a. Colorado State Law False Arrest and False Imprisonment Claims
(Claims 12 & 13)
Handy asserts these claims against Detective Bryant. In analyzing the
defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction [ECF No. 19],
Magistrate Judge Tafoya held the CGIA bars Handy’s false arrest and false
imprisonment claims to the extent they relate to his February 12, 2010, arrest and
August 18, 2011, arrest because Handy did not timely file notice of such claims

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pursuant to the CGIA mandate. Magistrate Judge Tafoya held that the CGIA does not
bar these claims as they relate to the first degree extreme indifference attempted
murder charges and the alleged protection order violation, all which arose from the June
16, 2011, preliminary examination. However, Magistrate Judge Tafoya states in her
Recommendation that “[p]laintiff’s twelfth and thirteenth claims are barred under the
CGIA.” ECF No. 93, p. 19, ¶ 1. To be clear, the CGIA bars Handy’s claims for false
arrest and false imprisonment to the extent they relate to his February 12, 2010, arrest
and the second degree attempted murder charges, and Handy’s August 18, 2011,
arrest. The CGIA does not bar these claims to the extent they relate to the first degree
extreme indifference attempted murder charges and the alleged protection order
violation. Therefore, these claims shall be included in Handy’s Amended Complaint, to
the extent previously stated.
b. Colorado State Law Malicious Prosecution Claim (Claim 6)
Handy asserts this claim against Detective Bryant, Officer Montoya, Officer
Arrellano, Officer Schwan, Smith, Burks, and Glaviano (collectively “the individual
defendants”). In order to prevail on a Colorado state law malicious prosecution claim, a
plaintiff must establish: “(1) the defendant contributed to bringing a civil or criminal
proceeding against the plaintiff; (2) the proceeding was resolved in favor of the plaintiff;
(3) there was no probable cause for the proceeding; (4) the defendant acted with
malice; and (5) the plaintiff incurred damages.” Hewitt v. Rice, 119 P.3d 541, 544 (Colo.
App. 2004) (citations omitted).
Magistrate Judge Tafoya held that the CGIA bars Handy’s malicious prosecution
claim to the extent that it relates to his second degree attempted murder charge, not his

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first degree extreme indifference attempted murder charge or the protection order
violation charge. For reasons stated above while analyzing the defendants’ Motion to
Dismiss for Lack of Subject Matter Jurisdiction [ECF No. 19], I agree with Magistrate
Judge Tafoya. Thus, Handy’s Amended Complaint shall include this claim only to the
extent that it relates to the charges for first degree extreme indifference attempted
murder and the protection order violation.
c. Colorado State Law Civil Conspiracy Claim (Claim 7)
Handy asserts this claim against the individual defendants. To prevail on a
Colorado state law civil conspiracy claim, a plaintiff must show: “(1) two or more
persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or
course of action; (4) an unlawful overt act; and (5) damages as to the proximate result.”
Nelson v. Elway, 908 P.2d 102, 106 (Colo. 1995) (citing Jet Courier Serv., Inc. v. Mulei,
771 P.2d 486, 502 (Colo. 1989)). Magistrate Judge Tafoya held that because Handy
only offers a conclusory allegation that the individual defendants “conspir[ed] to violate
[his] civil rights,” he does not sufficient establish that there was a meeting of minds
amongst the individual defendants. I agree with Magistrate Judge Tafoya that Handy
does not sufficiently plead any facts establishing that the individual defendants had a
meeting of the minds to conspire against him and violate his rights. Thus, this claim is
futile and shall not be included in Handy’s Amended Complaint.
d. Colorado State Law Negligence Claim (Claim 8)
Handy asserts this claim against Detective Bryant and Officers Montoya,
Arrellano, and Schwan. In order prevail on a negligence claim, a plaintiff must establish
that: (1) the defendant owed him a legal duty of care; (2) the defendant breached that

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duty; (3) he suffered injury; and (4) the defendant’s breach caused his injury. Vigil v.
Franklin, 103 P.3d 322, 325 (Colo. 2004) (citing Ryder v. Mitchell, 54 P.3d 885, 889
(Colo. 1992)).
Magistrate Judge Tafoya held that with respect to Officers Arrellano and Schwan,
Handy does not plead sufficient facts to support a negligence claim. However,
Magistrate Judge Tafoya held that Handy sufficiently alleges facts to support a
negligence claim against Detective Bryant and Officer Montoya. Specifically, Magistrate
Judge Tafoya held that the CGIA’s waiver of immunity for willful and wanton conduct
does not automatically preclude a claim for simple negligence, so long as Handy
ultimately proves that Detective Bryant and Officer Montoya acted willfully and wantonly.
A.B. ex rel. B.S., 831 F. Supp. 2d 1226, 1258-59 (D. Colo. Nov. 28, 2011) (denying
summary judgment as to a negligence claim because there was a genuine issue of
material fact as to whether the defendants’ actions were willful and wanton).
I agree with Magistrate Judge Tafoya and hold that Handy’s negligence claim
against Detective Bryant and Officer Montoya is not futile and shall be included in
Handy’s Amended Complaint. I further hold that Handy’s negligence claim against
Officers Arrellano and Schwan are futile and shall not be included in Handy’s Amended
Complaint.
e. Negligent Supervision, Respondeat Superior, and Failure to Train
Claims (Claims 9-11)
Handy asserts Claim 9 (negligent supervision) and Claim 10 (respondeat
superior) against the City of Sheridan, Detective Bryant, and Officers Montoya,
Arrelllano, and Schwan. Handy asserts Claim 11 (failure to train and supervise) against
the City of Sheridan and Detective Bryant.
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Magistrate Judge Tafoya held that Handy cannot assert these claims against
Detective Bryant, and Officers Montoya, Arrellano, and Schwan, because they are not
employers. See Stokes v. Denver Newspaper Agency, LLP, 159 P.3d 691, 694 (Colo.
App. 2006) (emphasis added) (“Under the respondeat superior doctrine, an employer is
liable for the torts of an employee acting within the scope of employment”); Gordon v.
Boyles, 99 P.3d 75, 81 (Colo. App. 2004) (emphasis added) (citation omitted) (stating
that negligent supervision claims arise when “an employer knew or should have known
that an employee’s conduct would subject third parties to an unreasonable risk of
harm”). Magistrate Judge Tafoya also held that Handy’s failure to train and supervise is
synonymous with his negligent supervision claim, and as such, the claim fails.
Regarding the City of Sheridan, Magistrate Judge Tafoya held that the CGIA bars
any of these claims because the City has not waived immunity and no CGIA waiver
provision contained in COLO. REV. STAT. § 24-10-106 applies.
I agree with Magistrate Judge Tafoya that Handy cannot validly assert these
claims. Therefore, amendment as to these claims is futile and they shall not be
included in Handy’s Amended Complaint.
f. Claims Against Officers Arrellano and Schwan (Claims
1,2,5,7,8,10,11, and 20)
Magistrate Judge Tafoya first noted that Handy’s proposed amended complaint
contains only three factual allegations relating to Officers Arrellano and Schwan: (1)
“Det. Bryant failed to go to the crime scene or send an officer to the crime scene of the
2 alleged intentional violent rammings, to collect evidence . . . and officers under Det.
Bryant’s command, including Officers Montoya, Arellano, and Schwan, either converged
on or passed the crime scene several times during the investigation . . . ” ECF No. 60-1,
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p. 6, ¶ 12; (2) “The defendants [including Officers Arrellano and Schwan] failed to report
or memorialize the fact that none of them scene [sic] any evidence at the alleged crime
scene . . . ” Id. at p. 7, ¶ 13; and, (3) “Det. Bryant, Officer Montoya, Officer Arrellano,
Officer Schwan, etc., deliberately, intentionally, or recklessly failed to investigate the
facts of the alleged intentional violent rammings . . . ” Id. at p. 8, ¶ 19. Magistrate Judge
Tafoya noted that the essence of these allegations against Officers Arrellano and
Schwan amount to the fact that they allegedly drove past the crime scene and failed to
investigate the scene because they were not directed to do so by their superior.
Magistrate Judge Tafoya stated that: (1) with respect to Handy’s duty to investigate
claims (Claims 1 & 2), Officers Arrellano and Schwan did not investigate because they
were not told to do so by their superior; (2) with respect to Handy’s malicious
prosecution claims (Claims 3, 4, & 6), Handy does not allege that Officers Arrellano and
Schwan’s failure to investigate caused his continued confinement or prosecution; (3)
with respect to Handy’s conspiracy claims (Claims 5 & 7), Handy fails to establish that
Officers Arrellano and Schwan had a meeting of the minds and conspired to violate his
rights; (4) with respect to Handy’s negligence claim (Claim 8), any failure to investigate
was not the result of Officers Arrellano or Schwan’s allegedly unreasonable acts or
omissions; (5) with respect Handy’s intentional infliction of emotion distress claim (Claim
15), Officers Arrellano and Schwan’s alleged failure to investigate does not constitute
outrageous conduct to support the claim6; and, (6) with respect to Handy’s Brady claim
6

In order to prevail on a claim for intentional infliction of emotion distress, a plaintiff must establish:
(1) that the defendant engaged in extreme and outrageous conduct; (2)
that the defendant intended to cause the plaintiff severe emotional
distress (or acted with reckless disregard for the plaintiff’s emotional
state); and (3) the plaintiff did in fact incur severe emotional distress as a
result of the defendant’s conduct.

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(Claim 20), Handy fails to allege that Officers Arrellano and Schwan personally
participated in the investigations and personally failed to properly collect and preserve
exculpatory evidence. Magistrate Judge Tafoya held that the allegations contained in
Handy’s proposed amended complaint are insufficient to establish any claim of relief
against Officers Arrellano and Schwan.
Magistrate Judge Tafoya also held that claims asserted against Officers Arrellano
and Schwan in their official capacities are barred because such claims are essentially
asserted against the City of Sheridan and the City of Sheridan is immune from tort
liability via the CGIA. See Monell, 436 U.S. at 690 n.55 (“Official capacity suits . . .
‘generally represent only another way of pleading an action against an entity of which
an officer is an agent’”). Magistrate Judge Tafoya recommends that amendment of
Handy’s complaint to include claims against Officers Arrellano and Schwan would be
futile and I agree. For the reasons stated by Magistrate Judge Tafoya, Handy’s
Amended Complaint shall not include any claims against Officers Arrellano and
Schwan.
g. Handy’s Claims Against Andrew Glaviano and James C. Burks
(Claims 5-7, 15, & 19)
With respect to Burks, Handy only mentions that he was in the car with Smith
and her two children when Handy allegedly rammed Smith’s car. Handy does not
sufficiently allege any claim against Burks. Magistrate Judge Tafoya held that Handy
fails to state a claim for relief against Burks and I agree.

Keohane v. Stewart, 882 P.2d 1293, 1311 n.25 (Colo. 1994) (citation omitted). “Liability has been found
only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999) (quoting Rugg v. McCarty, 476
P.2d 753, 756 (Colo. 1970)).

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With respect to Glaviano, an alleged eye witness to the supposed violent
rammings, Handy only alleges that his testimony contradicts Smith and Burk’s
testimony. Magistrate Judge Tafoya held that Handy’s allegation against Glaviano fails
to establish a claim for relief against Glaviano and I agree.
Therefore, Handy’s Amended Complaint shall not include any claims against
Burks and Glaviano.
h. Handy’s Claims Against Smith (Claims 5-7, 15, & 19)
i. Conspiracy Claims (Claims 5 & 7)
Magistrate Judge Tafoya held that both conspiracy claims are futile because
Handy does not establish that Smith had a meeting of the minds with any other
defendants to violate his rights. I agree, and these claims shall not be included in
Handy’s Amended Complaint.
ii. Malicious Prosecution (Claim 6)
In order to prevail on a Colorado state law malicious prosecution claim, a plaintiff
must establish: “(1) the defendant contributed to bringing a civil or criminal proceeding
against the plaintiff; (2) the proceeding was resolved in favor of the plaintiff; (3) there
was no probable cause for the proceeding; (4) the defendant acted with malice; and (5)
the plaintiff incurred damages.” Hewitt v. Rice, 119 P.3d 541, 544 (Colo. App. 2004)
(citations omitted). Magistrate Judge Tafoya stated that Handy sufficiently alleges a
malicious prosecution claim against Smith, as it relates to the charge of first degree
extreme indifference attempted murder. I agree.
Smith contributed to the criminal proceedings against Handy by complaining to
Detective Bryant and allegedly overstating the seriousness of the alleged violent

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ramming. Further, Smith created the impetus for Detective Bryant to initiate first degree
extreme indifference attempted murder charges against Handy by stating that her
pregnancy was terminated by the alleged violent ramming. Smith’s statements to
Detective Bryant about the alleged terminated pregnancy are sufficient to show malice
given Handy’s April 5, 2012, declaration (ECF No. 1-1) in which Handy states that Smith
had a voluntary abortion. A jury acquitted Handy of all charges relating to the alleged
violent ramming and Handy suffered damages as a result of his detention and trial on
such charges.
Though a judge found probable cause existed for the first degree extreme
indifference attempted murder charges during the June 16, 2011, preliminary
examination, Handy can rebut this finding by showing “that the defendant[s]
misrepresented, withheld or falsified evidence at the hearing.” Wigger v. McKee, 809
P.2d 999, 1005 (Colo. App. 1990). In paragraph 39 of his proposed amended
complaint, Handy alleges that:
[F]or the purpose of increasing the 4 counts of attempted
second degree murder to 4 counts of attempted first degree
extreme indifference murder, and 4 counts of attempted
second degree assault, and to mislead the judge in to
finding probable cause to set the false amended and added
counts for trial, Det. Bryant and Officer Montoya presented
false and perjured testimony. Both Det. Bryant and Officer
Montoya knew, based on their experience and training in
automobile accident reconstruction, that the minor damage
to Mrs. Smith’s car was not consistent with multiple
intentional violent rammings and pushes, at high rates of
speed.
ECF No. 60-1, pp. 10-11, ¶ 39. Handy properly alleges that at the very least, Detective
Bryant and Officer Montoya misrepresented facts at the June 16, 2011, preliminary
examination. Magistrate Judge Tafoya held that at this stage, Handy’s allegations are
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sufficient to withstand analysis under FED. R. CIV. P. 12(b)(6). I agree. Therefore,
Handy’s malicious prosecution claim against Smith, as it relates to the first degree
extreme indifference attempted murder charges is not futile and shall be included in
Handy’s Amended Complaint.
iii. Intentional Infliction of Emotional Distress (Claim 15)
In order to prevail on his claim for intentional infliction of emotion distress, Handy
must establish that: (1) Smith engaged in extreme and outrageous conduct; (2) Smith
intended to cause him severe emotional distress (or acted with reckless disregard for
his emotional state); and (3) he incurred severe emotional distress as a result of the
Smith’s conduct. Keohane, 882 P.2d at 1311 n.25. “Liability has been found only where
the conduct has been so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” Coors Brewing Co., 978 P.2d at 666 (citation
omitted).
Magistrate Judge Tafoya held that, taking Handy’s allegation that Smith had a
voluntary abortion as true, a jury could arguably find Smith’s false statement that the
alleged violent ramming terminated her pregnancy constitutes extreme and outrageous
conduct. I agree. Handy sufficiently alleges facts to support a claim for intentional
infliction of emotional distress. Therefore, the claim is not futile and shall be included in
Handy’s Amended Complaint.
iv. Defamation (Claim 15)
“To establish liability for defamation, a plaintiff must show that the defendant
published or caused to be published a defamatory statement.” Wilson v. Meyers, 126

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P.3d 276, 281 (Colo. App. 2005) (internal quotations and citations omitted). “[I]f a
statement imputes criminal activity or improper conduct in office, the words are
presumed to be defamatory.” Keohane v. Wilkerson, 859 P.2d 291, 302 (Colo. App.
1993) (citation omitted).
Magistrate Judge Tafoya held that taking Handy’s allegations as true, Smith’s
statement that the alleged violent ramming of her vehicle terminated her pregnancy
could constitute defamation per se because it imputes a criminal offense. I agree. If
true, Handy’s allegations sufficiently state a claim for defamation against Smith.
Therefore, Handy’s defamation claim against Smith is not futile and shall be included in
Handy’s Amended Complaint.
i. Handy’s Brady Claim Against Detective Bryant and Officer
Montoya (Claim 20)
In order to establish a Brady violation, a plaintiff must show that: “(1) the
prosecution suppressed [] evidence; (2) the evidence would have been favorable to [to
the plaintiff]; and (3) the suppressed evidence is material.” United States v. Griebel, 312
Fed. Appx. 93, 96 (10th Cir. 2008) (citations omitted). Evidence is material “only if there
is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” Id. “A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.” Id. (citing United States
V. Bagley, 473 U.S. 667, 682 (1985)).
Magistrate Judge Tafoya stated that she was unable to conclude whether
Handy’s Brady claim was futile because there was an absence of argument on this
issue by the parties. Thus, Magistrate Judge Tafoya held that she would “address the
sufficiency of these claims if and when Defendants Montoya and Bryant file a dispositive
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motion as to these claims.” ECF No. 93, p. 31, ¶ 4. On March 1, 2013, the defendants
filed Objections To Recommendations Of United States Magistrate Judge [ECF No. 97],
arguing that Handy’s allegations in his proposed amended complaint do not establish a
Brady violation. I agree with the defendants.
Suppression of evidence is the linchpin of a Brady claim. If a plaintiff does not
allege that the prosecution or law enforcement suppressed exculpatory evidence, there
is no viable Brady claim. Here, Handy does not allege that Detective Bryant and Officer
Montoya suppressed exculpatory evidence. Rather, Handy alleges that they did not
conduct a proper investigation of the incident and misrepresented facts concerning the
alleged violent rammings at preliminary hearings. Corollary to Brady’s duty to disclose
is a duty to diligently search for evidence of an alleged crime. However, a plaintiff’s
claim that certain evidence might have existed had law enforcement acted in a certain
way, is outside the scope of Brady. A plaintiff must establish that the prosecution or law
enforcement suppressed exculpatory evidence. Handy does not allege such facts in his
proposed amended complaint. Accordingly, I: (1) reject Magistrate Judge Tafoya’s
Recommendation regarding Handy’s Brady claim and hold that the claim is futile and
shall not be included in Handy’s Amended Complaint; and, (2) sustain the defendants’
objection that Handy fails to state a claim of relief with respect to his Brady claim.
j. Handy’s Defamation Claim Against Detective Bryant and Officer
Montoya (Claim 19)
Magistrate Judge Tafoya stated that because of an absence of argument by the
parties as to this claim, she was unable to conclude whether the claim is futile. Thus,
Magistrate Judge Tafoya held the Court would address this claim if and when Detective
Bryant and Officer Montoya file a dispositive motion addressing this claim. The
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defendants object to Magistrate Judge Tafoya’s Recommendation and state the CGIA
bars any defamation claim relating to the second degree attempted murder charges.
In paragraph 104 of his proposed amended complaint, Handy alleges that
Detective Bryant and Office Montoya “made false attempted murder and unlawful
termination of pregnancy statements, where the libelous and slanderous statements
imputed criminal offenses . . . ” ECF No. 60-1, p. 23. The defendants are correct in
stating that the CGIA bars any defamation claim arising from the June 16, 2010,
preliminary hearing and second degree attempted murder charges. Thus, this claim
can only relate to the June 16, 2011, preliminary hearing and the first degree extreme
indifference attempted murder charges. Handy’s proposed amended complaint
contains sufficient allegations at this stage of the proceedings to establish a defamation
claim against Detective Bryant and Officer Montoya regarding the first degree extreme
indifference attempted murder charges. Accordingly, I: (1) reject Magistrate Judge
Tafoya’s Recommendation regarding Handy’s defamation claim against Detective
Bryant and Officer Montoya, as it relates to the June 16, 2011, preliminary hearing and
the first degree extreme indifference attempted murder charges, and I find that the claim
is not futile and shall be included in Handy’s Amended Complaint; and, (2) sustain the
defendants’ objection only to the extent that they reiterate that the CGIA bars any
defamation claim arising from the June 16, 2010, preliminary hearing and second
degree attempted murder charges.
k. Factual Clarification Regarding the Preliminary Hearings
Handy requests that the Court allow him to include in his proposed amended
complaint that there were two, separate and distinct preliminary hearings: one on June

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16, 2010, regarding the second degree attempted murder charges, and one on June 16,
2011, regarding the first degree extreme indifference attempted murder charges.
Magistrate Judge Tafoya held that this distinction may be included in Handy’s Amended
Complaint and I agree.
CONCLUSION
After careful consideration of the matters before this Court, it is
ORDERED that Magistrate Judge Tafoya’s Recommendation [ECF No. 93] is
AFFIRMED IN PART and REJECTED IN PART.
With respect to the defendants’ Motion To Dismiss For Lack of Subject Matter
Jurisdiction [ECF No. 19], the Recommendation is REJECTED to the extent that
Magistrate Judge Tafoya recommended that his Court has subject matter jurisdiction
over Claim 6: malicious prosecution. I find that this Court lacks subject matter
jurisdiction over that claim. The remainder of the Recommendation, as it relates to the
defendants’ Motion To Dismiss For Lack Of Subject Matter Jurisdiction [ECF No. 19], is
AFFIRMED and ADOPTED in its entirety. Therefore, it is
FURTHER ORDERED that the defendants’ Motion To Dismiss For Lack Of
Subject Matter Jurisdiction [ECF No. 19] is GRANTED IN PART and DENIED IN PART.
The motion is GRANTED in that: (1) this Court lacks subject matter jurisdiction over
Handy’s tort claims arising out of his February 10, 2010, arrest and the subsequent
second degree attempted murder charges; and, (2) the CGIA bars Handy’s claims
against Detective Bryant and Officer Montoya in their official capacities. The motion is
DENIED in that: (1) this Court has subject matter jurisdiction over Handy’s tort claims
arising out of or in connection with the June 16, 2011, preliminary hearing i.e., the first

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degree extreme indifference attempted murder charges and alleged protection order
violation; (2) the CGIA does not bar Handy’s claims against Detective Bryant and Officer
Montoya in their individual capacities; and, (3) the defendants are not entitled to
reasonable attorney fees pursuant to COLO. REV. STAT. § 13-17-201 because this action
is not dismissed.
With respect to Handy’s Motion to Amend Complaint [ECF No. 60], the
Recommendation is REJECTED to the extent that Magistrate Judge Tafoya declined to
rule on Handy’s Brady claim (Claim 20) due to the “absence of appropriate argument.”
ECF No. 93, p. 31, ¶ 4. I find that Handy has not alleged sufficient facts to establish a
Brady claim. Therefore, the claim is futile and shall not be included in Handy’s
Amended Complaint. The Recommendation is also REJECTED to the extent that
Magistrate Judge Tafoya declined to rule on Handy’s defamation claim against
Detective Bryant and Officer Montoya (Claim 19). I find that to the extent the
defamation claim relates to the June 16, 2011, preliminary hearing and the first degree
extreme indifference attempted murder charges, the claim is not futile and shall be
included in Handy’s Amended Complaint. The remainder of the Recommendation, as it
relates to Handy’s Motion to Amend Complaint [ECF No. 60], is AFFIRMED and
ADOPTED in its entirety. Therefore, it is
FURTHER ORDERED that Handy’s Motion To Amend Complaint [ECF No. 60] is
GRANTED IN PART and DENIED IN PART. The motion is GRANTED to the extent
that Handy seeks to assert: (1) false arrest and false imprisonment claims against
Detective Bryant (Claims 12 & 13) that relate to the first degree extreme indifference
attempted murder charges and the alleged protection order violation, all which arose

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from the June 16, 2011, preliminary examination; (2) a malicious prosecution claim
(Claim 6) against Detective Bryant, Officer Montoya, and Smith as it relates to the
charges for first degree extreme indifference attempted murder and the protection order
violation; (3) a negligence claim (Claim 8) against Detective Bryant and Officer
Montoya; (4) claims for malicious prosecution (Claim 6), intentional infliction of
emotional distress (Claim 15), and defamation (Claim 19) against Smith; and, (5) a
defamation claim (Claim 19) against Detective Bryant and Officer Montoya. The motion
is also GRANTED to the extent that Handy seeks to clarify that there were two separate
and distinct preliminary hearings: one on June 16, 2010, regarding the second degree
attempted murder charges, and one on June 16, 2011, regarding the first degree
extreme indifference attempted murder charges. The motion is DENIED to the extent
that Handy seeks to assert the following claims, and the following claims shall not be
included in Handy’s Amended Complaint: (1) false arrest and false imprisonment
claims (Claims 12 & 13) against Detective Bryant to the extent they relate to Handy’s
February 12, 2010, arrest and the second degree attempted murder charges, and
Handy’s August 18, 2011, arrest; (2) the malicious prosecution claim (Claim 6) against
Detective Bryant, Officer Montoya, and Smith as it relates to Handy’s second degree
attempted murder charge; (3) the civil conspiracy claim (Claim 7) against all the
individual defendants; (4) claims for negligent supervision (Claim 9) and respondeat
superior (Claim 10) against the City of Sheridan, Detective Bryant, and Officers
Montoya, Arrellano, and Schwan; (5) the failure to train and supervise claim (Claim 11)
against the City of Sheridan and Detective Bryant; (6) all claims asserted against
Officers Arrellano and Schwan (Claims 1,2,5,7,8,10,11, & 20); (7) all claims asserted

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against Glaviano and Burks (Claims 5-7, 15, & 19); and, (8) the conspiracy claims
against Smith (Claims 5 & 7). It is
FURTHER ORDERED that the Defendants’ Objections To Recommendations Of
United States Magistrate Judge [ECF No. 97] are SUSTAINED in that: (1) Handy’s
allegations do not establish a Brady claim; and, (2) the CGIA bars any defamation claim
arising from the June 16, 2010, preliminary hearing and the second degree attempted
murder charges.
Dated: March 26, 2013.
BY THE COURT:

/s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior U. S. District Judge

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