Chambers v. The Board of County Commissioners of the County of Eagle, Colorado et al

Filing 88

ORDER Overruling Objections to and Adopting 76 Recommendation of United States Magistrate Judge. Defendant Cooper's Motion To Dismiss the AmendedComplaint [# 32 ], filed July 8, 2013, is GRANTED. Plaintiff's claims against Ms. Cooper in her individual capacity are DISMISSED WITHOUT PREJUDICE. By Judge Robert E. Blackburn on 2/25/2014.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-00393-REB-MEH
STAN CHAMBERS,
Plaintiff,
v.
JACKIE COOPER, in her individual capacity, and
HEATH MOSNESS, EAGLE COUNTY DEPUTY SHERIFF, in his individual and official
capacity,
Defendants.

ORDER OVERRULING OBJECTIONS TO AND ADOPTING
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) the Recommendation of United States
Magistrate Judge [#76],1 filed November 12, 2013; and (2) Plaintiff’s Objections to
the Recommendation of United States Magistrate Judge Concerning Defendant
Cooper [#80], filed November 26, 2013. I overrule plaintiff’s objections, adopt the
recommendation, and grant the apposite motion to dismiss plaintiff’s claims against Ms.
Cooper in her individual capacity.2
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which objections have been filed. I have considered carefully the
1

“[#76]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
2

Plaintiff previously dismissed Count IV of the Amended Complaint, as well as all claims against
Ms. Cooper in her official capacity, from this lawsuit. (See Order Regarding Plaintiff’s Unopposed
Motion To Dismiss ¶ 2(e) & 2(f) at 2 [#66], filed September 9, 2013.)

recommendation, objections, and applicable caselaw.3
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a
complaint must “‘contain[] enough facts to state a claim to relief that is plausible on its
face.’” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974,
167 L.Ed.2d 929 (2007)). Plausibility in this context requires that the complaint allege
facts sufficient to “raise a right to relief above the speculative level.” Kansas Penn
Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Twombly, 127
S.Ct. at 1965). See also Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008)
(“The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not
just speculatively) has a claim for relief.”)
The magistrate judge recommends granting Ms. Cooper’s motion to dismiss on
the grounds that the allegations implicating her state conceivable, but not plausible
claims. The nature and specificity of the allegations required to state a plausible claim
vary based on context and will “require[] the reviewing court to draw on its judicial
experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct.
1937, 1950, 173 L.Ed.2d 868 (2009); see also Kansas Penn Gaming, 656 F.3d at
1215. Nevertheless, the standard remains a liberal one, and “a well-pleaded complaint
may proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and unlikely.“ Dias v. City and County

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The magistrate judge found no basis to conclude that Ms. Cooper was entitled to absolute
judicial immunity for her alleged actions, and she has not objected to the recommendation on that basis. I
therefore do not consider that issue.

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of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quoting Twombly, 127 S.Ct. at 1965)
(internal quotation marks omitted).
In considering the recommendation and plaintiff’s corresponding objections, it is
vital to note with specificity the wrong Ms. Cooper, the Eagle County Court Clerk, is
accused of committing. Plaintiff alleges that Ms. Cooper merely provided Deputy
Mosness with copies of the 2005 protection order involving plaintiff and his ex-wife and
the 2005 Decree of Dissolution of Marriage which incorporated the protection order.
(Am. Compl. ¶¶ 49-50 at 12.) Despite the fact that these documents contained no
indication or injunction that plaintiff was prevented from contacting his children, Deputy
Mosness nevertheless allegedly relied on them in his arrest warrant affidavit claiming
there was probable cause to arrest plaintiff for violation of the protection order. (Am.
Compl. ¶ 53 at 13.)
The Amended Complaint alleges further that Deputy Mosness, aware that the
2005 protection order between plaintiff and his ex-wife did not prevent plaintiff from
having contact with his children, nevertheless “went to the Eagle County Court Clerk’s
office to cause, without legal authority, the creation of a protection order between Mr.
Chambers and his children.” (Am. Compl. ¶ 48 at 12.) To that end, Deputy Mosness
allegedly “directed Defendant Cooper to ‘update the language of the protection order in
the CCIC/NCIC computer.’” (Id. ¶ 51 at 12; see also id. ¶ 68 at 18 (alleging that Deputy
Mosness testified at plaintiff’s criminal trial that “he asked Defendant Court Clerk Jackie
Cooper to ‘update’ the CCIC/NCIC information to reflect a ‘no-contact’ Order between
[plaintiff] and his children”).) Plaintiff alleges that in connection with discovery in his

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criminal case, he subsequently received from the government a Permanent Civil
Protection Order that included the children as protected parties. (Id. ¶¶ 61-62 at 15.)
This order allegedly “was the primary document relied upon by the People in support
[of] the charges of violation of a protection order filed against [plaintiff.]” (Id. ¶ 67 at 17.)
The inference that the Amended Complaint seeks to draw, therefore, is that Ms.
Cooper was responsible for the alteration of the protection order. I agree with the
magistrate judge that this inference, while conceivable, is not plausible. In fact, with
regard to plaintiff’s claim of false arrest, the Amended Complaint does not tie any
alleged misconduct of Ms. Cooper to plaintiff’s arrest at all. Instead, the arrest was
based allegedly on Deputy Mosness’s mispresentation regarding the content and scope
of the original 2005 protection order. It is not plausible to infer that Ms. Cooper’s mere
provision of the original orders to Deputy Mosness caused or contributed to plaintiff’s
arrest. Thus, the recommendation to dismiss this claim will be adopted.
With respect to plaintiff’s malicious prosecution claim, the magistrate judge found
that the facts alleged were sufficient to permit a reasonable inference that Ms. Cooper
“changed the Final Order to extend to Plaintiff’s children.” I do not believe the
allegations of the Amended Complaint go even that far.
Plaintiff alleges that Deputy Mosness requested Ms. Cooper to “update the
language of the protection order in the CCIC/NCIC computer.” (Am. Compl. ¶ 51 at 12.)
“NCIC” is the initialism for the FBI’s National Crime Information Center; “CCIC” is its
Colorado state counterpart. The NCIC database is “an electronic clearinghouse of
crime data” consisting of 21 separate files, one of which is Protection Orders.

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Criminal justice agencies enter records into NCIC that are
accessible to law enforcement agencies nationwide. . . .
However, a positive response from NCIC is not probable
cause for an officer to take action. NCIC policy requires the
inquiring agency to make contact with the entering agency to
verify the information is accurate and up-to-date. Once the
record is confirmed, the inquiring agency may take action to
arrest a fugitive, return a missing person, charge a subject
with violation of a protection order, or recover stolen
property.
Federal Bureau of Investigation, About Us, National Crime Information Center
(available at http://www.fbi.gov/about-us/cjis/ncic) (last accessed February 20, 2014).
“The entry, modification, and removal of records are the responsibility of the agency that
entered them.” (Id.) See also U.S. Department of Justice, Federal Bureau of
Investigation, Criminal Justice Information Services Division, Law Enforcement
Records Management Systems (RMSs), The National Crime Information Center
(NCIC) and Law Enforcement Records at 14 (“Agencies that enter records in the
NCIC are responsible for their accuracy, timeliness, and completeness.”) (available at
http://www.fbi.gov/about-us/cjis/law-enforcement-records-management-system) (last
accessed February 20, 2014).
Plaintiff’s allegation is that Ms. Cooper was asked to “update” this database.
There is, however, no allegation that Ms. Cooper complied with this request. Moreover,
and even assuming arguendo that Ms. Cooper did, in fact, “update” the database as
requested, there is no allegation tying that action to the adulterated protection order
plaintiff received some months later. There are no facts alleged to suggest that Ms.
Cooper was herself responsible for generating the new protection order on which the
state relied in prosecuting plaintiff. Nor are there any facts pleaded to suggest that
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whoever created that order relied on the NCIC/CCIC database. The inferences required
to support plaintiff’s theory of liability thus are simply too attenuated to support a
plausible chain of causation sufficient to support plaintiff’s malicious prosecution claim
as against Ms. Cooper.
For similar reasons, I likewise approve and adopt the magistrate judge’s
recommendation that the facts alleged in the Amended Complaint are insufficient to
support a claim that Ms. Cooper knew that her alleged actions were certain or
substantially certain to cause plaintiff severe emotional distress, a necessary element of
his outrageous conduct claim. See Culpepper v. Pearl Street Building, Inc., 877 P.2d
877, 882 (Colo. 1994).
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#76], filed
November 12, 2013, is ADOPTED and APPROVED as an order of the court:
2. That the objections stated in Plaintiff’s Objections to the Recommendation
of United States Magistrate Judge Concerning Defendant Cooper [#80], filed
November 26, 2013, are OVERRULED;
3. That Defendant Cooper’s Motion To Dismiss the Amended
Complaint [#32], filed July 8, 2013, is GRANTED;
4. That plaintiff’s claims against Ms. Cooper in her individual capacity are
DISMISSED WITHOUT PREJUDICE;
5. That at the time judgment enters, judgment without prejudice SHALL ENTER
for defendant, Jackie Cooper, in her individual capacity, against plaintiff, Stan

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Chambers, on all claims for relief and causes of action asserted in this action; and
6. That defendant, Jackie Cooper, in her individual capacity, is DROPPED as a
named party to this action, and the case caption AMENDED accordingly.
Dated February 25, 2014, at Denver, Colorado.
BY THE COURT:

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