Carrillo, v. Hickenlooper, et al.,

Filing 324

ORDER adopting Report and Recommendations re 218 Report and Recommendations. Plaintiffs' claims are dismissed in accordance with Judge Hegarty's Recommendation and Plaintiffs' are granted leave to file an amended complaint within thirty (30) days of this Order. By Judge Raymond P. Moore on 5/14/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 12-cv-02034-RM-MEH
ALFONSO A. CARRILLO,
RAYMUNDO CASTILLO,
MARGARITA GARCIA,
SERGIO HERNANDEZ,
GONZALO PEREZ,
GERMAN JASSO BRUNO,
LAURA PATRICIA GUTIERREZ-VITE,
JOSE OROZCO,
MARIA ELENA CARRILLO,
ANA L. CHAVEZ,
DANIEL ORTIZ,
JUAN PABLO REYES,
TERESA MONGE,
JORGE RAMIREZ
MARTHA ESQUIVEL,
LUIS FIGUEROA,
MANUEL PACHECO,
JOSE A. URENA-SANTOS,
WILLIAM CRISTO SANTOS,
JANET VALARA,
SELVIN CARDOZA,
JESSICA ITURBE JAIME,
JULIO ARREGUIN,
AVARO NUNEZ,
NOHELIA, JIMENEZ,
ELIZABETH PADILLA,
MA. DEL ROSARIO URENA,
NORA G. GONZALEZ,
HUGO A. PACHECO,
SONIA LOPEZ,
ADRIANA PADILLA,
CLAUDIA OROZCO MOLINA, and
JOSE M. VELASQUEZ,
Plaintiffs,
v.

JOHN W. HICKENLOOPER, The Honorable Governor in his official capacity as Colorado
Governor,
JOHN W. SUTTERS, Colorado Attorney General, in his official capacity as elected Colorado
Attorney General,
ELIZABETH OLDHAM, in her official capacity as 14th Judicial District Attorney,
DON QUICK, 17th Judicial District Attorney in his official capacity as elected District Attorney,
RODNEY JOHNSON, Grand County Sheriff in his official capacity as elected Sheriff,
TED MINK, in his official capacity as elected Jefferson County Sheriff,
FRANK THOMAS, in his official capacity as Sheriff,
SHERIFF DEPARTMENT, in its official capacity,
DOUGLAS N. DARR, in his official capacity as elected Adams County Sheriff Department, and
TOM DELAND, in his official capacity as Broomfield Chief of Police,
Defendants.
ORDER ADOPTING
RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on the March 11, 2013 Recommendation of United States
Magistrate Judge Michael E. Hegarty (the “Recommendation”) (ECF No. 218). The
Recommendation addresses eight distinct motions to dismiss filed by various clusters of
defendants as well as by persons referenced in the Complaint but not designated as parties.
Magistrate Judge Hegarty recommended that the motions to dismiss, filed by the Defendants in
this case, be granted, although not in each instance on all bases raised by Defendants. He also
recommended that other motions, filed by certain individuals not named as Defendants in this
case, be denied as moot. Finally, he recommended that Plaintiffs be allowed to file an amended
complaint within thirty (30) days of the District Court’s Order. As discussed below, the Court
rules that the Recommendation is hereby ADOPTED and incorporated herein by reference, and
all objections are hereby OVERRULED. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).

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I.

BACKGROUND
Plaintiffs’ claims stem out of the alleged attempts on the part of Defendants to prevent

Plaintiffs from resisting foreclosure, and harassing Plaintiffs during their attempts to do so. The
38 page Complaint (exclusive of signatures) purports to be for both monetary and equitable relief
and describes itself as arising out of civil rights violations and deprivation of various
constitutional rights. While difficult to encapsulate due to the vague and meandering nature of
much of the Complaint, the essence of the Complaint is that (1) changes were made to Colorado
laws governing foreclosure proceedings, (2) the changes made it easier to foreclose on
properties, (2) the changes were made both illegally and improperly, (4) Plaintiffs have sought to
challenge foreclosures affecting them under the new law, and (5) Defendants have attempted to
intimidate Plaintiffs or retaliate against them for resisting foreclosure by a wide range of
conduct, including having one or more Plaintiffs arrested and charged in criminal court with
violations of law. The Plaintiffs, calling themselves the Holders of Evidence of Apocryphal
Transactions or the H.E.A.T. group, have thus filed their Complaint against a wide array of
Colorado officials including the governor, prosecutors, and police.
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 72(b)(2) provides, “Within 14 days after being served

with a copy of the recommended disposition, a party may serve and file specific written
objections to the proposed findings and recommendations.” Rule 72(b)(3) provides, “The district
judge must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” An objection must be sufficiently specific so as to enable the “district
judge to focus attention on those issues—factual and legal—that are at the heart of the parties’
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dispute.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting
Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a timely and specific objection,
“the district court may review a magistrate [judge’s] report under any standard it deems
appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991).
III.

DISCUSSION
The Court concludes that the Magistrate Judge’s analysis was painstakingly thorough and

sound, and that there is no clear error of law or abuse of discretion. No objections by Plaintiffs
have been filed that require de novo review, either because the objections were not timely, were
not specific, or both. Proper objections were filed by Defendants Morrissey, Chun, Geigle and
Brauchler. The objections that were filed are each addressed briefly below.
Partial Objection to the Recommendation (ECF No. 223)
Plaintiffs filed a Partial Objection to the Recommendation on March 26, 2013 (ECF No.
223). In this Partial Objection, Plaintiffs opine about their attempts to obtain counsel, ask for
more time to file additional objections, and “acknowledg[e…] Plaintiffs’ need to amend their
complaint, but without the protection Plaintiffs desperately needs, it only means greater exposure
to further unconstitutional ‘malicious prosecution’ and ‘abuse of process’ by the State
Defendants.” (ECF No. 223 at 2-3.) While the Court is uncertain what Plaintiffs mean by this
last statement, it is clear that it does not constitute a substantive objection to the Magistrate
Judge’s ruling, on either factual or legal grounds, and certainly does not meet the specificity
requirement as outlined above. As for Plaintiffs’ actual purported objections, I will take each in
turn.

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“Plaintiffs object to the withholding of the much needed and plentifully grounded
preliminary injunction against civil (foreclosures and evictions) and criminal proceedings by the
state Defendants…” (ECF No. 223 at 3.) They object on three distinct grounds.
First, they object to the Magistrate Judge’s reliance on the Rooker-Feldman Doctrine and
Younger abstention, and cite Exxon Mobil’s narrowing of the first of those doctrines. In response,
the Court notes that Judge Hegarty’s analysis of the Rooker-Feldman line of cases, a doctrine of
limited scope which holds that federal review of state court judicial decisions may be obtained
only in the United States Supreme Court unless Congress has specifically authorized it, actually
concluded “that the Rooker-Feldman doctrine does not apply to bar the Plaintiffs’ claims in this
case.” (ECF No. 218) (emphasis added). See Rooker v. Fid. Trust Co., 263 U.S. 413 (1923);
Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). It is unclear why Plaintiffs
object, or would want to object, to that conclusion. The Younger abstention dictates that federal
courts should not interfere with state court proceedings by granting equitable relief that could
adequately be sought before the state court. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27
L.Ed.2d 669 (1971). Judge Hegarty construed Plaintiffs’ pleadings liberally to interpret them as
questioning the constitutionality of state statutes and/or rules, and found “that Younger abstention
is premature at this stage of the litigation.” As this finding also worked in Plaintiffs’ favor, and
this Court agrees with Judge Hegarty’s analysis, Plaintiffs’ objections on this score, regardless of
their intent, are overruled.
Second, Plaintiffs argue that the effect of the Magistrate Judge’s ruling “is highly
prejudicial as emboldens the state in their groundless and malicious prosecution and only
encourages more retaliatory acts.” (ECF No. 223 at 5.) Finally, third, Plaintiffs argue that
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“[w]ithout effective protection, as the one sought in a preliminary injunction the presumption of
innocence is unfairly removed and the constitutional and civil rights are basically eliminated
giving encouraging a prejudicial and vindictive series of acts by the State Defendants.” (ECF No.
223 at 6.) Plaintiffs’ objections, without specifically taking issue with any of the facts as
presented by Judge Hegarty, assume and allege many other facts inappropriately, and are devoid
of any real objection to Judge Hegarty’s factual or legal analysis. In essence, Plaintiffs’ objection
is a request for the Court to impose much of the equitable relief requested in the Complaint while
Plaintiffs prepare an amended complaint. Obviously, the Court cannot and will not do so in the
context of a motion to dismiss.
Plaintiff’s Second Set of Filed Objections (ECF No. 227)
On April 4, 2014, Plaintiffs filed an additional pleading containing objections. Although,
as Defendants point out, Plaintiffs’ second Objection to the Recommendation (ECF No. 227) is
untimely, as it was filed approximately ten days after the deadline, given Plaintiffs’ request for an
extension in the first set of objections and in light of their pro se status, the Court is willing to
entertain any and all substantive objections. However, the objections filed by Plaintiffs are both
difficult to understand and nonspecific in nature. For instance, Plaintiffs object that Defendants
“failed to lay the foundation to object or authenticate their request for dismissal…by not denying
the validity of Plaintiffs’ cause of action.” (ECF No. 227.) What, specifically, in Magistrate
Judge Hegarty’s Recommendation they take issue with by this objection is impossible to discern.
The remaining objections in this document are similarly nonspecific and/or incomprehensible.
They object to “not protecting Plaintiffs as witnesses or victims,” that dismissing their claims
would be “unfairly prejudicial and badgering the witness(es),” and they object to the dismissal of
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certain defendants “as all Defendants are equally charged and responsible (some at higher degrees
than others), in the much larger conspiracy.” (Id.) They object to dismissal of their substantive
claims—for defective pleadings—as unfairly prejudicial as privilege and other claims have been
asserted by various Defendants in discovery and, again, assert the need for protection from the
Court before they can safely proceed. None of these, nor any of the other objections contained in
ECF No. 227, with one exception, are specific enough on either a factual or legal basis to enable
me to evaluate them thoroughly.
The one objection that is made that can be identified and properly understood as an
objection is Plaintiffs’ claim that the Eleventh Amendment does not extend to municipalities and
thus, the Judge Hegarty’s determination that it applied to District Attorney Brauchler, Oldham and
Morrissey in their official capacities is erroneous as a matter of law. The Court has considered
this objection de novo, and hereby overrules it. In Colorado, the district attorney is a state officer
as a matter of Colorado law. Romero v. Boulder County D.A.’s Office, 87 Fed. Appx. 696, 698
(10th Cir. 2004).
Objection from Defendants Morrissey, Chun, Geigle and Brauchler (ECF No. 226)
Defendants Mitchell R. Morrissey, Dan Chun, Phillip Geigle and George H. Brauchler
jointly submitted an Objection to the Recommendation. (ECF No. 226.) They assert that (1) “the
Recommendation’s providing the Plaintiffs with another opportunity to file an amended
complaint is inappropriate and unwarranted under these circumstances” and (2) “Defendant
Morrissey objects to the Recommendation’s refusal to recommend dismissal of all claims against
him.” (ECF No. 226 at 1.)

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As to the first argument, these Defendants base their position on two main assertions: first,
that since the allegations against at least some of the Defendants arise out of the criminal
prosecution of some of the Plaintiffs, “the entirety of the activities of these Defendants [District
Attorneys and their staff] were prosecutorial in nature and therefore protected by absolute
immunity.” (ECF No. 226 at 3.) Second, that Plaintiffs have already unsuccessfully litigated
prior cases in which the allegations were “remarkably similar” to the allegations made in the
instant case. (Id.) The Court takes note of both of these assertions, but at this juncture refuses to
look to other litigation outside the confines of the record to determine whether or not Plaintiffs’
claims have the potential for merit, if pled properly.
Defendant Morrissey separately objects to the Recommendation’s refusal to recommend
dismissal of all claims against him. The Court disagrees with Defendant Morrissey’s
interpretation of the Recommendation. While it is true that the Recommendation did not extend
prosecutorial immunity to an allegation of dissemination of false information to the press on
December 5, 2011, it nonetheless granted the motion to dismiss the substantive claims alleged
against him on other grounds. Defendant Morrissey presses the issue in that a dismissal based on
immunity would be more beneficial than one based on other grounds. Accordingly, Defendant
Morrissey asks the Court to review the immunity claim on the merits, asserting that a merits claim
was raised in the motion to dismiss.
To the extent that Defendant Morrissey seeks to have the Court convert the motion to
dismiss to a motion for summary judgment, the Court declines to do so. Given the Plaintiffs’ pro
se status, the 12(b)(6) motion’s presentation of various forms of alternative relief resulting in a
less-than-clear posture in terms of requesting a conversion to a Rule 56 motion, and Judge
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Hegarty’s decision to adopt the alternative of addressing the 12(b)(6) issue rather than “stay[ing]
the case, pending discovery and determination of…qualified immunity,” the Court overrules the
objection. The issue may, of course, be raised again if Plaintiffs choose to amend their Complaint
to include a claim against Defendant Morrissey.
In sum, none of the Plaintiffs’ objections alter this Court’s agreement with Judge
Hegarty’s analysis—the objections presented by Plaintiffs consist of philosophical position
statements, criticisms of the legal process more generally, or are largely too vague and
nonspecific for the Court to assess them. Defendants’ objections do not suffer from these defects,
but are nonetheless overruled after de novo consideration.
IV.

CONCLUSION
In accordance with the foregoing, the Court ORDERS as follows:
1. The Magistrate Judge’s Recommendation (ECF No. 218) is ADOPTED in
its entirety;
2. Plaintiffs’ claims are dismissed in accordance with Judge Hegarty’s
Recommendation; and
3. Plaintiffs are granted leave to file an amended complaint within thirty (30) days of
this Order.
DATED this 14th day of May, 2014.
BY THE COURT:
____________________________________
RAYMOND P. MOORE
United States District Judge

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