Carbajal et al v. Morrissey et al

Filing 432

ORDER by Chief Judge Philip A. Brimmer on 9/22/2021, re: 420 Defendant's MOTION to Dismiss Plaintiff's Fourth Amended Complaint is GRANTED. ORDERED that judgment shall enter for defendant and against plaintiffs on all claims. ORDERED that, within 14 days of the entry of judgment, defendant may have her costs by filing a bill of costs with the Clerk of the Court. ORDERED that this case is closed. (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 12-cv-03231-PAB-KLM
VICTORIA CARBAJAL, and
LUIS LEAL,
Plaintiffs,
v.
REBEKAH MELNICK,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on Defendant’s Motion to Dismiss Plaintiffs’
Fourth Amended Complaint [Docket No. 420]. The Court has jurisdiction pursuant to 28
U.S.C. §§ 1331.
I. BACKGROUND1
This case involves plaintiff’s claim for malicious prosecution based on alleged
false testimony of defendant, a former deputy district attorney for Colorado’s Second
Judicial District, regarding plaintiffs’ alleged failure to appear for a trial subpoena. See
Docket No. 419 at 2. In 2011, plaintiffs were subpoenaed to testify in a state criminal
trial scheduled for July 27, 2011. See id. at 3, ¶ 7. On July 5, 2011, the state court
vacated the July 27 trial date. Id., ¶ 8. No one informed plaintiffs that the trial date was
vacated. Id. On July 27, defendant appeared before a different judge than the one
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The Court assumes that the allegations in plaintiffs’ fourth amended complaint
are true in considering the motion to dismiss. Brown v. Montoya, 662 F.3d 1152, 1162
(10th Cir. 2011).

assigned to the criminal case and “testified ex parte as to the non-appearance” of
plaintiffs for the July 27, 2011 trial. Id., ¶ 9. Defendant “testified” that plaintiffs “had
been subpoenaed to testify for trial this date, July 27, 2011, but failed to appear.” Id., ¶
10. Subsequently, the judicial officer issued a warrant to arrest plaintiffs for contempt of
court. Id., ¶ 11. Both plaintiffs were arrested and released on bond. Id. at 4, ¶¶12-13.
At the hearing on August, 8, 2011, the “charges” were dropped and plaintiffs were
informed that the trial had been continued to November 29, 2011. Id., ¶ 14.
This case was originally filed on December 11, 2012, with plaintiffs asserting
numerous claims on a wide range of activity against many defendants. See generally
Docket No. 1. On February 20, 2014, the magistrate judge issued a recommendation
on defendants’ motion to dismiss, recommending that all claims be dismissed. See
Docket No. 185. On March 31, 2014, Judge Robert Blackburn accepted the magistrate
judge’s recommendation. See generally Docket No. 198. Plaintiffs appealed the
decision. See Docket No. 216. The Tenth Circuit affirmed on all counts except
malicious prosecution against defendant for her actions regarding the contempt
proceeding. See Carbajal v. McCann, 808 F. App’x 620, 640 (10th Cir. 2020)
(unpublished). Specifically, the Tenth Circuit concluded that, although prosecutors
have absolute immunity for actions intimately associated with the judicial process, they
do not when they act as witnesses. See id. at 630-32. Because the complaint alleged
that defendant provided false testimony to the court, the Tenth Circuit reversed the
grant of absolute immunity. Id. at 631-32. After the Court vacated the dismissal of the
malicious prosecution claim, plaintiffs filed their fourth amended complaint. See Docket

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No. 419. On November 23, 2020, defendant filed the present motion to dismiss,
arguing that she is entitled either to absolute or qualified immunity for her actions
leading to plaintiffs’ arrest. See generally Docket No. 420.
II. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must allege enough factual matter that, taken as true, makes
the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The ‘plausibility’ standard requires that relief must plausibly follow from the
facts alleged, not that the facts themselves be plausible.” RE/MAX, LLC v. Quicken
Loans Inc., 295 F. Supp. 3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534
F.3d 1282, 1286 (10th Cir. 2008)). Generally, “[s]pecific facts are not necessary; the
statement need only ‘give the defendant fair notice of what the claim is and the grounds
upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Twombly, 550 U.S. at 555) (alterations omitted). However, a plaintiff still must provide
“supporting factual averments” with his allegations. Cory v. Allstate Insurance, 584
F.3d 1240, 1244 (10th Cir. 2009) (“[C]onclusory allegations without supporting factual
averments are insufficient to state a claim on which relief can be based.” (citation
omitted)). Otherwise, the Court need not accept conclusory allegations. Moffet v.
Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002).
“[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not shown – that

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the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations
and alterations omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his]
claims across the line from conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s allegations are “so
general that they encompass a wide swath of conduct, much of it innocent,” then
plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted).
Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still
must contain either direct or inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at
1286 (alterations omitted).
III. ANALYSIS
A. Absolute Immunity
Defendant argues that she is entitled to absolute immunity for two reasons: (1)
the docket sheet of the state court proceedings, which she asks the Court to take
judicial notice of, establishes that she did not testify and only presented affidavits sworn
by others to the court and (2) she was acting within her role as an advocate before the
court. See Docket No. 420 at 8-11. The Court finds that the docket sheet is insufficient
to demonstrate that defendant did not testify at the hearing and, furthermore, that
defendant’s second argument is foreclosed by the Tenth Circuit’s ruling on appeal.
To state a claim for malicious prosecution, a plaintiff must adequately allege: “(1)
the defendant caused the plaintiff's continued confinement or prosecution; (2) the
original action terminated in favor of the plaintiff; (3) no probable cause supported the

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original arrest, continued confinement, or prosecution; (4) the defendant acted with
malice; and (5) the plaintiff sustained damages.” See Wilkins v. DeReyes, 528 F.3d
790, 799 (10th Cir. 2008) (citation omitted). However, prosecutors are generally
“entitled to absolute immunity . . . for activities intimately associated with the judicial
process, such as initiating and pursuing criminal prosecutions.” Carbajal, 808 F. App’x
at 631 (citing Gagan v. Norton, 35 F.3d 1473, 1475 (10th Cir. 1994)). Noneth eless,
“administrative duties” and “investigatory functions” that are unrelated to the “initiation of
a prosecution or for judicial proceedings are not entitled to absolute immunity.” Id.
(citing Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)). Accordingly, a prosecutor
will not be afforded immunity if she acts as a witness and not an advocate. Id. (citing
Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1164 (10th Cir. 2009)).
On appeal, the Tenth Circuit noted that, because plaintiffs alleged that defendant
“presented false information,” plaintiffs had sufficiently alleged that defendant provided
“alleged testimony” to the court and, as a result, defendant would not have “absolute
prosecutorial immunity for [her] acts as a witness.” Id. at 631-32. In an effort to
distinguish the Tenth Circuit’s ruling, defendant argues that the docket sheet of the
state court proceeding conclusively establishes that defendant did not testify at the
hearing, but merely presented the certificates of service that demonstrate plaintiffs were
served with subpoenas for the July 27, 2011 trial. See Docket No. 420 at 9. The
docket sheet, however, is not as clear as defendant suggests. The docket entry states
that “Dda Personally Served” plaintiffs with subpoenas to appear on July 27, 2011, that
plaintiffs failed to appear on July 27, 2011, and that the court would issue a bench

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warrant for each of them. See Docket No. 422 at 10-11. The docket sheet otherwise
does not indicate what happened at the hearing and does not disprove plaintiff’s
allegation in the complaint that defendant “testified.” Given that the Court must accept
plaintiffs’ allegations as true, and the docket sheet does not contradict plaintif fs’
allegations, it is insufficient to demonstrate that defendant did not testify.2
Defendant next argues that her actions at the August 8, 2011 contempt hearing
were within her role as an advocate for the state, primarily based on a case from the
Sixth Circuit. See Docket No. 420 at 11 (citing Adams v. Hanson, 656 F.3d 397, 403-04
(6th Cir. 2011)). Defendant suggests that there is no other Tenth Circuit case on point
and, as a result, the Court should follow the reasoning of the Sixth Circuit. However,
the Sixth Circuit’s approach in Hanson is foreclosed by plaintiffs’ appeal. On appeal in
this case, the Tenth Circuit concluded that defendant is not protected by absolute
immunity for allegedly testifying at the contempt proceeding. See Carbajal, 808 F.
App’x at 631-32. It is unclear how the Court could now rule the opposite, based on a
case from a different circuit, and find that defendant is in fact protected by absolute
immunity for her alleged testimony at the contempt proceeding.
Accordingly, because the docket sheet does not contradict plaintif fs’ allegations
that defendant testified at the contempt hearing, and the Tenth Circuit has held that

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Defendant also argues that plaintiffs’ complaint is based on “nothing more than
[p]laintiffs’ belief, with absolutely no factual support,” particularly because plaintiffs did
not attend the hearing where the contempt warrants were issued. See Docket No. 420
at 7. However, personal knowledge is not necessarily required to make a sufficient
factual allegation in a complaint. Moreover, the Tenth Circuit implicitly found that
plaintiffs’ allegation that defendant testified was sufficient, foreclosing any argument to
the contrary on remand. See Carbajal, 808 F. App’x at 631-32.
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defendant would not be protected by absolute immunity for such actions, the Court
finds that defendant is not entitled to absolute immunity.
B. Qualified Immunity
Defendant argues that, even if she is not entitled to absolute immunity, she is
entitled to qualified immunity because plaintiffs’ allegations do not support a claim for a
constitutional violation. See Docket No. 420 at 12-16. Plaintiffs respond that their right
to be free from malicious prosecution is clearly established and that the complaint is
sufficient to make out a claim. See Docket No. 426 at 12-16. The Court agrees with
defendant.
Qualified immunity “protects public employees from both liability and ‘from the
burdens of litigation’ arising from their exercise of discretion.” Cummings v. Dean, 913
F.3d 1227, 1239 (10th Cir. 2019) (quoting Allstate Sweeping, LLC v. Black, 706 F.3d
1261, 1266 (10th Cir. 2013)). For a claim to survive a qualified immunity defense, “the
onus is on the plaintiff to demonstrate ‘(1) that the official violated a statutory or
constitutional right, and (2) that the right was “clearly established” at the time of the
challenged conduct.’” Id. (emphasis omitted) (quoting Quinn v. Young, 780 F.3d 998,
1004 (10th Cir. 2015)). Moreover, a “plaintiff must make this demonstration ‘on the
facts alleged.’” Quinn, 780 F.3d at 1004 (quoting Riggins v. Goodman, 572 F.3d 1101,
1107 (10th Cir. 2009)). Courts are permitted to address the prongs of the qualified
immunity analysis in any order that they wish and, should “think hard” before
addressing both prongs of the analysis. See Hunt v. Bd of Regents of Univ. of N.M.,
792 F. App’x 595, 600-01 (10th Cir. 2019) (unpublished) (citing Camreta v. Greene, 563

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U.S. 692, 707 (2011)); see also Yeasin v. Durham, 719 F. App’x 844, 850 (10th Cir.
2018) (unpublished) (“We can analyze either prong of the qualified immunity test first
and can resolve the case solely on the clearly established prong.” (citing Panagoulakos
v. Yazzie, 741 F.3d 1126, 1129 (10th Cir. 2013)).
“A clearly established right is one that is ‘sufficiently clear that every reasonable
official would have understood that what he is doing violates that right.’” Mullenix v.
Luna, 577 U.S. 7, 11 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). A
plaintiff can demonstrate that a right is clearly established “by identifying an on-point
Supreme Court or published Tenth Circuit decision” establishing the unlawfulness of the
defendant’s actions. Cummings, 913 F.3d at 1239 (quoting Quinn, 780 F.3d at 1005).
“Although it is not necessary for the facts in the cited authority to correspond exactly to
the situation the plaintiff complains of, the ‘plaintiff must demonstrate a substantial
correspondence between the conduct in question and prior law allegedly establishing
that the defendant’s actions were clearly prohibited.’” Estate of B.I.C. v. Gillen, 761 F.3d
1099, 1106 (10th Cir. 2014) (quoting Trotter v. Regents, 219 F.3d 1179, 1184 (10th Cir.
2000)).
As noted above, to state a claim for malicious prosecution, a plaintiff must
adequately allege: “(1) the defendant caused the plaintiff's continued confinement or
prosecution; (2) the original action terminated in favor of the plaintiff; (3) no probable
cause supported the original arrest, continued confinement, or prosecution; (4) the
defendant acted with malice; and (5) the plaintiff sustained damages.” See Wilkins,
528 F.3d at 799. Defendant argues that plaintiffs cannot make out a claim for malicious

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prosecution because the original action did not terminate in plaintiffs’ favor; instead, the
state chose to not pursue contempt as a result of plaintiffs “agree[ing] to appear
pursuant to the trial subpoenas for the new criminal trial date.” See Docket No. 420 at
13. Plaintiffs respond that “the record clearly shows that the contempt charges were
dismissed by the prosecution,” thus demonstrating that the proceedings terminated in
plaintiffs’ favor. See Docket No. 426 at 14-15. W hile the Court agrees that the
contempt charges were not pursued by the prosecution, the issue is whether the
prosecution’s decision not to do so constitutes a term ination in plaintiffs’ favor. The
Court finds that it does not.
A plaintiff has the “burden to show that the termination was favorable,” and, to
meet that burden, “a plaintiff must allege facts which, if true, would allow a reasonable
jury to find the proceedings terminated for reasons indicative of innocence.” Montoya v.
Vigil, 898 F.3d 1056, 1066 (10th Cir. 2018) (citations and q uotations omitted). An
acquittal due to innocence is “the gold standard for showing proceedings terminated in
the plaintiffs favor,” and a plaintiff will meet this “element if a court vacated the
conviction because the plaintiff was ‘factually innocent.’” Id. (quoting Pierce v. Gilchrist,
359 F.3d 1279, 1294 (10th Cir. 2004)). W here a conviction was not vacated because
the defendant was factually innocent, whether the plaintiff can meet the second
element of a malicious prosecution claim “is less obvious” because “the disposition
terminating a criminal proceeding does not on its face say anything at all about the
plaintiff’s guilt.” Id. When that happens, a court “look[s] to the stated reasons f or the
dismissal as well as to the circumstances surrounding it in an attempt to determine

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whether the dismissal indicates the accused’s innocence.” Id. (citing Wilkins, 528 F.3d
at 803). If the disposition “leaves the question of the accused’s innocence unresolved,
there generally can be no malicious prosecution claim.” Id. (citing M.G. v. Young, 826
F.3d 1259, 1263 (10th Cir. 2016)). Thus, if “the termination of the proceedings ‘does
not touch the merits,’ the criminal proceedings did not terminate favorably.” Id. (quoting
Cordova v. City of Albuquerque, 816 F.3d 645, 650 (10th Cir. 2016)).
Here, the Court finds that the circumstances surrounding the dismissal of the
contempt charges are not indicative of plaintiffs’ innocence such that the proceedings
can be considered terminated in plaintiffs’ favor. First, it is plaintiffs’ burden to
demonstrate that the proceedings terminated in their favor, id. at 1066, but the only
allegation in the complaint is that the prosecution chose to not pursue “due to the lack
of factual basis.” Docket No. 419 at 4, ¶ 14. That is insufficient to demonstrate that the
proceedings terminated in plaintiffs’ favor. “[A] dismissal of charges [does not] create a
presumption of innocence or shift the burden of proving the element of favorable
termination to the defendant.” Cordova, 816 F.3d at 654. The key question is “whether
a reasonable jury could find–based on more than just speculation–that the state court
vacated [p]laintiffs’ convictions for reasons indicative of innocence.” Young, 826 F.3d at
1263. Young is instructive. In that case, there were no stated reasons for the vacation
of the conviction, the government stipulated to the vacation, and the only possible
reasons for vacation of the conviction were those stated in the defendant’s petition for
vacation of conviction. Id. The Tenth Circuit found that, without any stated reasons
and without anything other than the defendant’s petition for vacation of sentence, there

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was nothing suggesting that the sentence was vacated for innocence. Id. at 1264.
Thus, even though the state stipulated to dismiss the charges, without more, a claim for
malicious prosecution could not succeed. As a result, plaintif fs’ allegation that there
“lacked a factual basis,” Docket No. 419 at 4, ¶ 14, without anything more than that the
citations were dropped, is “impermissible speculation” that is insufficient to meet
plaintiffs’ burden. Young, 826 F.3d at 1264.
Second, the Court has access to the docket entries f or the proceeding, which it
will take judicial notice of as a court document. See Tal v. Hogan, 453 F.3d 1244, 1264
n.24 (10th Cir. 2006). The docket entries for plaintiffs’ contempt hearing state that
“Witnesses Did Not Appear To Have Subpoena Continued and [] W arrants Were
Issued” and that “The People Will Not Pursuit [sic] Criminal Contempt.” Docket No. 422
at 9. As for the reasons for the dismissal, the docket entry states that the prosecution
chose not to pursue contempt, but does not explain why. Id. The burden is on plaintiff
to demonstrate that the termination was indicative of innocence, not the defendant.
Montoya, 898 F.3d at 1066. Given that the entry for plaintiffs’ contempt hearing states
that plaintiffs failed to appear to continue their July 27 trial subpoenas, and plaintiffs
have failed to offer any evidence that the contempt citations were terminated in
plaintiffs’ favor, plaintiffs cannot make out a claim for malicious prosecution.
As a result, the Court finds that plaintiffs have failed to demonstrate that the prior
proceedings terminated in their favor. Therefore, plaintiffs have failed to carry their
burden that defendant violated their constitutional rights, and, as a result, defendant is
entitled to qualified immunity.

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IV. CONCLUSION
For these reasons, it is
ORDERED that Defendant’s Motion to Dismiss Plaintiffs’ Fourth Amended
Complaint [Docket No. 420] is GRANTED. It is further
ORDERED that judgment shall enter for defendant and against plaintiffs on all
claims. It is further
ORDERED that, within 14 days of the entry of judgment, defendant may have
her costs by filing a bill of costs with the Clerk of the Court. It is further
ORDERED that this case is closed.

DATED September 22, 2021.
BY THE COURT:

PHILIP A. BRIMMER
Chief United States District Judge

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