Johnson v. Dash et al

Filing 211

ORDER denying 166 Motion To Reinstate Claims Against Defendants Ahlin and DePriest. By Judge Robert E. Blackburn on 9/14/2015. (Attachments: # 1 Exhibit)(mlace, )

Garcia v. Harms, --- P.3d ---- (2014)

2014 WL 5847610
Only the Westlaw citation is currently available.
NOTICE: THIS OPINION HAS NOT BEEN
RELEASED FOR PUBLICATION IN THE
PERMANENT LAW REPORTS. A PETITION
FOR REHEARING IN THE COURT OF APPEALS
OR A PETITION FOR CERTIORARI IN THE
SUPREME COURT MAY BE PENDING.

West Headnotes (13)

[1]

Prisons
Exhaustion of Other Remedies
After exhausting administrative remedies, an
inmate may obtain judicial review of a
disciplinary conviction by filing an action
under civil procedure rule governing correctional
facility quasi-judicial review hearings. C.R.C.P.
106.5(a).

Colorado Court of Appeals, Div. V.
Anthony Max GARCIA, Plaintiff–Appellant,
v.
Allen HARMS, in his official capacity; James Falk,
in his official capacity; Rick Raemisch, in his official
capacity; John Hickenlooper, Governor, in his
official capacity; State of Colorado; and Jane Doe
and John Doe, whose true names are unknown,
in their official capacities, Defendants–Appellees.

Cases that cite this headnote
[2]

Cases that cite this headnote
[3]

[1] claims challenging quasi-judicial function fell within
scope of rule governing quasi-judicial discipline review
hearings and its 30-day filing deadline;

[3] claims against Governor and State were subject to twoyear statute of limitations.

Affirmed in part, reversed in part, and remanded.

Prisons
Scope or standard of review
Judicial review under rule governing
correctional facility quasi-judicial review
hearings is limited to a determination of
whether the quasi-judicial body has exceeded
its jurisdiction or abused its discretion. C.R.C.P.
106.5(a).

Holdings: The Court of Appeals, Fox, J., held that:

[2] claims against corrections department officials and
employees were subject to one-year statute of limitations; and

Prisons
Judicial Review
Civil procedure rule governing correctional
facility quasi-judicial review hearings applies to
every action brought by an inmate to review a
decision resulting from a quasi-judicial hearing
of any facility of the corrections department.
C.R.C.P. 106.5(a).

Court of Appeals No. 13CA2085
| Announced November 6, 2014
Synopsis
Background: Prison inmate brought action against state and
corrections officials, challenging his disciplinary conviction
for assault against a corrections officer under the corrections
department's Code of Penal Discipline (COPD). The District
Court, Logan County, Charles M. Hobbs, J., dismissed action
as time barred. Inmate appealed.

Prisons
Right to intervention or review; jurisdiction

Cases that cite this headnote
[4]

Prisons
Scope or standard of review
Claims that do not challenge quasi-judicial
action by the corrections department or its
employees are outside the scope of the
rule governing quasi-judicial discipline review
hearings. C.R.C.P. 106.5(a).

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Garcia v. Harms, --- P.3d ---- (2014)

body's quasi-judicial functions or its quasilegislative actions.

Cases that cite this headnote
[5]

Cases that cite this headnote

Prisons
Judicial Review
Rule governing quasi-judicial discipline review
hearings does not apply to actions challenging
the correction department's policy-making
authority or to facial constitutional challenges
to administrative policies and regulations; such
actions attack the department's quasi-legislative
actions rather than the exercise of its quasijudicial powers. C.R.C.P. 106.5(a).

[9]

Appeal and Error
Review of correct decision based on
erroneous reasoning in general
If possible, the appellate court will uphold
a district court's decision reaching a correct
result, even if the district court's reasoning was
incorrect.
Cases that cite this headnote

Cases that cite this headnote
[10]
[6]

Prisons
Judicial Review

Prison inmate's claims challenging the
corrections department's application of rules and
policies to inmate's assault charge under Code of
Penal Discipline (COPD) constituted a challenge
to a quasi-judicial function that fell within the
scope of rule governing quasi-judicial discipline
review hearings and its 30-day filing deadline,
rendering the claims untimely and subject to
dismissal. C.R.C.P. 106.5(a).

Where an inmate challenges the correction
department's quasi-judicial action, his claim falls
within the scope of rule governing quasi-judicial
discipline review hearings and he must bring
his action in accordance with the rule. C.R.C.P.
106.5(a).
Cases that cite this headnote
[7]

Cases that cite this headnote

Constitutional Law
Discipline and classification
Due process challenges to a correctional facility's
discipline review hearing procedure, challenges
to the hearing officer's factual findings, and asapplied constitutional challenges to the Code of
Penal Discipline (COPD) or other administrative
regulations all constitute challenges to the
correction department's quasi-judicial action,
and those claims must be brought in an action
under rule governing quasi-judicial discipline
review hearings. C.R.C.P. 106.5(a).

[11]

Administrative Law and Procedure
Scope
The appellate court reviews de novo the district
court's determination of whether a plaintiff's
complaint sought review of a governmental

Prisons
Time for proceedings
Prison inmate's claims against corrections
department officials and employees, challenging
their actions as it related to his assault conviction
and discipline under Code of Penal Discipline
(COPD), were governed by one-year statute of
limitations applicable to actions against sheriffs,
coroners, police officers, firefighters, national
guardsmen, or any other law enforcement
authority, rather than two-year statute of
limitations applicable to actions against public
or governmental entities or employees. C.R.S.A.
13–80–102(1)(h); section 13–80–103(1)(c).

Cases that cite this headnote
[8]

Prisons
Time for proceedings

Cases that cite this headnote
[12]

Prisons
Time for proceedings

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Garcia v. Harms, --- P.3d ---- (2014)

Prison inmate's claims against Governor and
State, challenging his assault conviction and
discipline under Code of Penal Discipline
(COPD), were governed by two-year statute of
limitations applicable to actions against public
or governmental entities or employees. rather
than one-year statute of limitations applicable to
actions against sheriffs, coroners, police officers,
firefighters, national guardsmen, or any other
law enforcement authority. C.R.S.A. 13–80–
102(1)(h); section 13–80–103(1)(c).
Cases that cite this headnote
[13]

Municipal Corporations
Time to sue and limitations
Because peace officers are granted the authority
to enforce Colorado law, they are law
enforcement authorities such that claims against
them are subject to one-year statute of limitations
applicable to actions against sheriffs, coroners,
police officers, firefighters, national guardsmen,
or any other law enforcement authority. C.R.S.A.
13–80–103.
Cases that cite this headnote

dismissed the action as not timely filed. Garcia now appeals
the district court's order dismissing his claims. We affirm in
part, reverse in part, and remand the case to the district court
with directions.

I. Background
¶ 2 Garcia was charged with assault under the COPD after a
corrections officer accidentally pricked herself on a sewing
needle he kept in his cell. Garcia was not present at the time
—the incident happened during a search of Garcia's cell in
his absence—but he was charged under the COPD, found
culpable at a hearing on the charge, and disciplined. He was
also required to pay restitution.
¶ 3 Garcia's lawsuit challenged his conviction. His complaint
alleged:
(1) Garcia's disciplinary hearing did not comply with
constitutional due process requirements;
(2) the COPD definition of assault was unconstitutionally
vague on its face and as applied to him; 1
(3) the CDOC exceeded its authority when it ordered him
to pay restitution;

Logan County District Court No. 13CV46, Honorable
Charles M. Hobbs, Judge

(4) section 17–1–111, C.R.S.2014, which exempts CDOC
from certain provisions of the Administrative Procedure
Act, sections 24–4–101 to –108, C.R.S.2014, violates
constitutional separation-of-powers principles; and

Attorneys and Law Firms

(5) the collection of restitution unjustly enriched CDOC.

The Elliott Law Offices, P.C., Mark Elliott, Alonit Katzman,
Arvada, Colorado; Elisabeth L. Owen, Denver, Colorado, for
Plaintiff–Appellant.
John W. Suthers, Attorney General, Nicole S. Gellar,
Senior Assistant Attorney General, Denver, Colorado, for
Defendants–Appellees.
Opinion
Opinion by JUDGE FOX
*1 ¶ 1 Plaintiff Anthony Max Garcia, an inmate at Sterling
Correctional Facility (Sterling), was convicted of assault
under the Colorado Department of Corrections (CDOC) Code
of Penal Discipline (COPD). He filed an action in district
court challenging his COPD conviction, and the district court

Garcia asked the district court to vacate his COPD assault
conviction, return the money he had paid in restitution, and
issue an order declaring section 17–1–111 and the COPD
definition of assault unconstitutional.
¶ 4 The defendants moved to dismiss the action, arguing that
Garcia's complaint—which was filed nearly two years after
his COPD conviction became final—was time barred under
C.R.C.P. 106.5 and section 13–80–103(1)(c), C.R.S.2014. At
the time, Rule 106.5 required that actions “brought by an
inmate to review a decision resulting from a quasi-judicial
hearing of [the CDOC]” be filed within thirty days after the
final decision of the hearing body or officer. C.R.C.P. 106(b)
(2011); C.R.C.P. 106.5(a) (incorporating, by reference,
the provisions of C.R.C.P. 106(b)). 2 Section 13–80103(1)

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(c) establishes a one-year statute of limitations for “[a]ll
actions against sheriffs, coroners, police officers, firefighters,
national guardsmen, or any other law enforcement authority.”
1

The COPD definition of assault was changed after
Garcia's initial complaint was filed. See DOC Admin.
Reg. 150–01(IV)(D)(4.2) (effective March 15, 2014).
Garcia does not challenge the constitutional validity of
the new definition.

2

The deadline is now twenty-eight days after the final
decision of the body or officer. See C.R.C.P. 106(b).

¶ 5 Garcia countered that neither Rule 106.5 nor section
13–80–103(1)(c) applied to his claims. Instead, he argued,
the filing deadline applicable to his case is found in section
13–80–102(1)(h), C.R.S.2014, which establishes a two-year
statute of limitations for “[a]ll actions against any public
or governmental entity or any employee of a public or
governmental entity, except as otherwise provided in ...
section 13–80–103.” Because his complaint was filed within
two years of his COPD conviction, he argued, his claims were
not time barred.
*2 ¶ 6 The district court determined that Garcia's complaint
was time barred under Rule 106.5 and dismissed the case for
lack of jurisdiction. See Wallin v. Cosner, 210 P.3d 479, 480
(Colo.App.2009) (The filing deadline contained in C.R.C.P.
106(b) “ ‘is jurisdictional and cannot be tolled or waived.’
” (quoting Fraser v. Colo. Bd. of Parole, 931 P.2d 560, 562
(Colo.App.1996))). Garcia now challenges the district court's
order of dismissal, except as to claims one and five.

II. Applicability of C.R.C.P. 106.5
¶ 7 Garcia first argues that the district court erred by
concluding that Rule 106.5 applies to this action. He argues
that his claims challenged “CDOC's establishment of policies
and general application of those policies,” not his disciplinary
conviction, and that therefore they were not subject to the
thirty-day deadline established by the rule. With respect to
Garcia's fourth claim and portions of his second and third
claims, we agree. With respect to the remaining portions of
claims two and three, however, we disagree.

[1] [2] ¶ 8 “After exhausting administrative remedies, an
inmate may obtain judicial review of a disciplinary conviction
by filing an action under C.R.C.P. 106.5(a).” Geerdes v. Dir.,
Colo. Dep't of Corr., 226 P.3d 1261, 1261 (Colo.App.2010).
Rule 106.5 “applies to every action brought by an inmate
to review a decision resulting from a quasi-judicial hearing
of any facility of the Colorado Department of Corrections.”
C.R.C.P. 106.5(a).
[3]
[4]
[5] ¶ 9 Judicial review under Rule 106.5 is
limited “to a determination of whether the [quasi-judicial]
body or officer has exceeded its jurisdiction or abused its
discretion.” C.R.C.P. 106(a)(4)(I); C.R.C.P. 106.5(a); see
also People v. Garcia, 259 P.3d 531, 533 (Colo.App.2011).
Claims that do not challenge quasi-judicial action by the
CDOC or its employees are outside the scope of the rule.
See Verrier v. Colo. Dep't of Corr., 77 P.3d 875, 879
(Colo.App.2003); Jones v. Colo. Dep't of Corr., 53 P.3d 1187,
1191 (Colo.App.2002). Therefore, Rule 106.5 does not apply
to actions challenging the CDOC's policy-making authority
or to facial constitutional challenges to administrative policies
and regulations. Such actions attack the CDOC's quasilegislative actions rather than the exercise of its quasijudicial powers. See Mariani v. Colo. Dep't of Corr., 956
P.2d 625, 630 (Colo.App.1997) (“[A] facial challenge to
administrative regulations on the grounds of vagueness and
overbreadth is beyond the scope of C.R.C.P. 106(a)(4).”);
see also Danielson v. Zoning Bd. of Adjustment, 807 P.2d
541, 543 (Colo.1990) (“C.R.C.P.106(a)(4) and its ... time
limitation apply only to judicial review of a quasi-judicial
action of an inferior tribunal and do not apply to challenges
to legislative acts.”); Tri–State Generation & Transmission
Co. v. City of Thornton, 647 P.2d 670, 677 (Colo.1982) (a
facial constitutional challenge to a city ordinance did not
attack a decision of a quasi-judicial body, and therefore did
not fall under Rule 106(a)(4)); Margolis v. Dist. Court, 638
P.2d 297, 305 (Colo.1981) (city council's enactment of zoning
ordinances constitutes legislative action beyond the scope of
Rule 106); Higby v. Bd. of Cnty. Comm'rs, 689 P.2d 635,
638 (Colo.App.1984) (holding that Rule 106(a)(4) provides
the exclusive means for challenging a quasi-judicial zoning
determination unless the complaint includes a facial challenge
to the zoning ordinance in question). 3
3

A. The Scope of C.R.C.P. 106.5

We are aware of some cases that appear to hold that
Rule 106 and Rule 106.5 complaints must include all
constitutional claims. See, e.g., Bd. of Cnty. Comm'rs
v. Sundheim, 926 P.2d 545, 548 (Colo.1996) ( “A
C.R.C.P. 106(a)(4) complaint must include all causes

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Garcia v. Harms, --- P.3d ---- (2014)

of action, including constitutional claims, in a single
C.R.C.P. 106(a)(4) action.”); Norby v. City of Boulder,
195 Colo. 231, 236, 577 P.2d 277 (1978) (“[O]ne
challenging a rezoning determination must prosecute all
of his causes, including claims of unconstitutionality, in
one action.”); Snyder v. City of Lakewood, 189 Colo.
421, 427, 542 P.2d 371, 375 (1975) (“Rule 106(a)(4)
is now an exclusive remedy to challenge a Rezoning
determination where the entire General zoning ordinance
is not challenged and where a review of the record
would be an adequate remedy.”). The Colorado Supreme
Court has clarified, however, that these cases refer
only to due process claims and as-applied constitutional
challenges; facial constitutional challenges—which
concern legislative rather than judicial action—are not
within the scope of the rule. See Margolis v. Dist. Court,
638 P.2d 297, 305 (Colo.1981) (expressly overruling
any language in Snyder which might be read as finding
a municipality's legislative actions to be quasi-judicial
actions challengeable under C.R.C.P. 106).

*3 [6] [7] ¶ 10 Conversely, where an inmate challenges
the CDOC's quasi-judicial action, his claim falls within
the scope of Rule 106.5, and he must bring his action
in accordance with the rule. Due process challenges to
the hearing procedure, challenges to the hearing officer's
factual findings, and as-applied constitutional challenges to
the COPD or other administrative regulations all constitute
challenges to CDOC's quasi-judicial action. See Tri–State
Generation & Transmission Co., 647 P.2d at 676 n. 7
(holding that as-applied constitutional challenges concern the
application of a rule to a particular party, and thus constitute
challenges to quasi-judicial action); see also Nichols ex rel.
Nichols v. DeStefano, 70 P.3d 505, 507 (Colo.App.2002) (the
district court has the power to review due process claims
when evaluating whether a quasi-judicial body abused its
discretion); Fisher v. Colo. Dep't of Corr., 56 P.3d 1210, 1213
(Colo.App.2002) (a quasi-judicial body abuses its discretion
when it fails to provide due process). Thus, those claims must
be brought in a Rule 106.5 action.

B. The Effect of C.R.C.P. 106.5 on Garcia's Claims
[10] ¶ 12 Portions of Garcia's second and third claims
challenged only quasi-judicial action. In claim two, Garcia
asserted that the COPD definition of assault under which
he was convicted was unconstitutionally vague on its face
and as applied. In claim three, he claimed that the CDOC
exceeded its authority by garnishing his inmate account to pay
the restitution. Each of these claims challenged the CDOC's
application of rules and policies to Garcia's COPD charge, a
quasi-judicial function. Therefore, they fell within the scope
of Rule 106.5, and were subject to the rule's filing deadline.
See Danielson, 807 P.2d at 543. Because neither claim was
filed within the thirty-day period for filing Rule 106.5 actions,
the portions of claims two and three that challenged quasijudicial action were time barred under Rule 106.5, and the
trial court did not err by dismissing them. See Cosner, 210
P.3d at 480.

III. Section 13–80–103 Establishes the Filing
Deadline for Garcia's Remaining Claims

[11] [12] ¶ 13 Garcia's remaining claims were not within
the scope of Rule 106.5. The remainder of claim two asserted
that the COPD definition of assault under which Garcia
was convicted was unconstitutionally vague on its face. A
portion of claim three asserted that the CDOC has adopted
a monetary restitution policy for COPD infractions that
violates the Separation of Powers Clause of Article III of
the Colorado Constitution. Claim four asserted that section
17–1–111 facially violates separation-of-powers principles.
These claims challenged the facial validity of statutes and
CDOC rules—legislative and quasi-legislative acts—not
their application to Garcia. Therefore, they did not challenge
quasi-judicial action of the CDOC, and Rule 106.5 and its
filing deadline do not apply. See Danielson, 807 P.2d at 543.
The parties disagree, however, as to what filing deadline
[8]
[9] ¶ 11 We review de novo the district court's
applies to these remaining claims.
determination of whether a plaintiff's complaint sought
review of a governmental body's quasi-judicial functions
¶ 14 Under section 13–80–102(1)(h), a two-year statute
or its quasi-legislative actions. Jones, 53 P.3d at 1191. If
of limitations applies to “[a]ll actions against any public
possible, we will uphold a district court's decision reaching
or governmental entity or any employee of a public or
a correct result, even if the district court's reasoning was
governmental entity, except as otherwise provided in ...
incorrect. See Sundheim v. Bd. of Cnty. Comm'rs, 904
section 13–80–103.” Under section 13–80–103(1)(c), a oneP.2d 1337, 1345 (Colo.App.1995), aff'd, 926 P.2d 545
year statute of limitations applies to “[a]ll actions against
(Colo.1996).
sheriffs, coroners, police officers, firefighters, national
guardsmen, or any other law enforcement authority.”

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Garcia v. Harms, --- P.3d ---- (2014)

*4 ¶ 15 Garcia's complaint named seven defendants: (1)
the State of Colorado; (2) Governor John Hickenlooper;
(3) the executive director of the CDOC; (4) the warden of
Sterling Correctional Facility; (5) the CDOC officer who
presided over his disciplinary hearing; and (6) John Doe and
(7) Jane Doe, two corrections officers involved in collecting
restitution from Garcia. Because each of these defendants is
either a governmental entity or was named in their official
capacity, Garcia asserts that his action “is a suit against a
public entity,” and is therefore subject to the two-year filing
deadline set by section 13–80–102(1)(h). The defendants
counter that Garcia's suit is an action against various law
enforcement authorities. Therefore, they argue, the one-year
statute of limitations applies. With respect to Garcia's claims
against CDOC officials and employees, we agree with the
defendants. With respect to Garcia's claims against Governor
Hickenlooper and the State of Colorado, we agree with
Garcia.
¶ 16 The phrase “law enforcement authority” is not defined
in section 13–80–103. In Delta Sales Yard v. Patten, 892
P.2d 297, 300 (Colo.1995), the Colorado Supreme Court
turned to the definition of “peace officer” in section 18–1–
901(3) to determine whether a state brand inspector was a
law enforcement authority under section 13–80–103. A peace
officer, as defined in section 16-2.5–101, C.R.S.2014, has
“the authority to enforce all laws of the state of Colorado
while acting within the scope of his or her authority and
in the performance of his or her duties.” Colorado statutes
use the terms “peace officer” and “law enforcement officer”
interchangeably. § 16–2.5–101(3). Because brand inspectors
are peace officers endowed with the statutory power to arrest,
the Delta Sales Yard court reasoned, they are law enforcement
authorities under section 13–80–103. Id. at 300–01.
[13] ¶ 17 We find Delta Sales Yard to be instructive. Because
peace officers are granted the authority to enforce Colorado
law, they are “law enforcement authorities” for purposes of
section 13–80–103. Under section 16–2.5–135, C.R.S.2014,
“[t]he executive director of the department of corrections, a
warden, a corrections officer employed by the department
of corrections, or other department of corrections employee
assigned by the executive director, is a peace officer while
engaged in the performance of his or her duties pursuant
to title 17, C.R.S.” Therefore, five of the named defendants
in this case—the CDOC's executive director, the warden of
Sterling, the hearing officer, and the two unnamed corrections
officers—are “law enforcement authorities” for purposes of

section 13–80–103(1)(c). Because Garcia failed to file his
claims against those defendants within one year after his
cause of action arose, those claims were time barred, and the
trial court properly dismissed them. See Sundheim, 904 P.2d
at 1345.
¶ 18 Gallegos v. City of Monte Vista, 976 P.2d 299
(Colo.App.1998), which Garcia cites to support his contrary
argument, does not compel the opposite conclusion. In
Gallegos, a former inmate at the Monte Vista police station
sued the City of Monte Vista on respondeat superior grounds
for injuries he incurred while in the custody of Monte Vista
police. Id. at 300. A division of this court held that the
plaintiff's action against the city was not subject to the oneyear statute of limitations in section 13–80–103. Id. at 302.
The division reasoned that, though the police officers might
have been proper parties, because the city could be held
vicariously liable for the negligent acts of its employees under
respondeat superior principles, the city was also a proper
defendant. Id. The Gallegos division noted, however, that any
action against the police officers themselves would be time
barred under section 13–80–103. Id.
¶ 19 Garcia, unlike the plaintiff in Gallegos, has sued
five law enforcement authorities directly. Therefore, section
13–80–103 applies to his claims against those defendants,
and those claims are time barred. The two-year statute of
limitations contained in section 13–80–102 applies to Garcia's
remaining claims against the State of Colorado and Governor
Hickenlooper. Therefore, those claims were timely filed, and
the district court erred by dismissing them as time barred.

IV. Conclusion
*5 ¶ 20 We affirm the district court's order dismissing
Garcia's as-applied constitutional challenges in claims two
and three. We also affirm the dismissal of Garcia's remaining
claims against the executive director of the CDOC, the
warden of the Sterling Correctional Facility, the hearing
officer who presided over his disciplinary hearing, and two
unnamed corrections officers.
¶ 21 We reverse the trial court's order dismissing, as time
barred, Garcia's fourth claim against Governor Hickenlooper
and the State of Colorado. We also reverse the dismissal on
timeliness grounds of Garcia's facial constitutional challenge
against those defendants in claim two and his facial
constitutional challenge to CDOC policies in claim three.

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These claims are reinstated, and the case is remanded to
the district court for further proceedings consistent with
this opinion. On remand, the district court should determine
whether Garcia has properly stated causes of action against
the State of Colorado and Governor Hickenlooper in the
reinstated claims. The court may, in its discretion, request
additional briefing on the matter.
End of Document

JUDGE BERNARD and JUDGE ASHBY concur.
All Citations
--- P.3d ----, 2014 WL 5847610

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