A Just Cause v. Martinez

Filing 39

ORDER granting 32 Motion to Dismiss; denying as moot 34 Motion to Stay Discovery. by Judge R. Brooke Jackson on 5/9/14. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 13-cv-02260-RBJ
A JUST CAUSE, a non-profit organization,
and KENDRICK BARNES, an individual,
Plaintiffs,
v.
UNITED STATES OF AMERICA, and
DARLENE M. MARTINEZ,
Defendants.

ORDER

The case is before the Court on Defendants’ motion to dismiss under Rules 12(b)(1) and
12(b)(6) [ECF No. 32]. For the reasons set forth herein, the motion is granted.
FACTS
This case concerns a dispute about something that the presiding judge said but that was
not recorded during a bench conference in a criminal case tried in this district in September
2011. In that case, United States v. Banks, et al., No. 09CR266-CMA, six individuals had been
indicted for conspiracy and various individual counts of mail and wire fraud -- 25 counts in all.1

1

In deciding a motion to dismiss for failure to state a claim on which relief may be granted, courts may
consider, in addition to the four corners of the complaint, matters of which courts may take judicial
notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Federal courts may take
judicial notice of their own records and, in appropriate circumstances, proceedings in other courts. St.
Louis Baptist Temple, Inc. v. Federal Deposit, 605 F.2d 1169, 1172 (10th Cir. 1979). A court need not
accept as true a factual allegation plainly contrary to facts established by records of which the Court can
take judicial notice. Cf. GFF Corp. v. Associated Wholesale Grocers, 130 F.3d 1381, 1384–85 (10th Cir.
1997). In the present case I am taking judicial notice of certain records in the files of this court, including
the files in the Banks case over which Hon. Christine M. Arguello presided and certain other records in
the Office of the Clerk of Court.
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The 17-day trial began on September 26, 2011 and concluded on October 20, 2011, resulting in
one or more guilty verdicts against each defendant. On August 14, 2012 the court sentenced the
defendants to varying terms of between 87 and 135 months in prison plus three years of
supervised release and restitution of $5,018,959.66. Defendants’ appeals are presently pending
in the United States Court of Appeals for the Tenth Circuit.
The Bench Conference
October 11, 2011 was the eleventh day of trial in the criminal case. Following the
testimony of three defense witnesses, Judge Arguello advised the defendants that they could call
their next witness. Transcript [ECF No. 557] at 53. Defendant Gary Walker, who like the other
defendants was representing himself pro se, asked to approach the bench. The transcript reads as
follows:
THE COURT: Defense may call its next witness.
MR. WALKER: Your Honor, the defense – can we approach?
THE COURT: You may.
(A bench conference is had, and the following is had outside the hearing
of the jury.)
MR. WALKER: Our next witness is scheduled at 10:30. We anticipated
– it’s going quicker.
THE COURT: That is unacceptable. I told you to have witnesses here.
We are not going to recess again until 10:30. That is 40 minutes away. I told you
to be prepared. They need to be here. Your witnesses are not taking long. We
are going to go. The eight you named, you still have time. So you better get them
here. So call your next witness.
MR. WALKER: Yes, Your Honor.
(The following is had in the hearing of the jury.)
MR. WALKER: Your Honor, we would like to check to see if Mr. Reese
is in the witness room.
THE COURT: You may.
MR. WALKER: Your Honor, defense calls Ken Barnes.

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Tr. at 53–54.
Kendrick Barnes was one of the defendants in the criminal case and is a plaintiff in the
present case. After Mr. Walker finished his questions of Mr. Barnes, defendants David Banks
and Demetrius Harper continued the direct examination. Tr. at 68–78. The last two defendants
asked no questions, and Mr. Barnes declined to make any further statement beyond what had
been asked of him. Id. at 78.
The morning break followed, after which government counsel Matthew Kirsch (outside
the presence of the jury) asked the court to make it clear on the record that all parties “had every
reason to believe that Mr. Barnes intended to testify no matter what happened in this case . . .
regardless of the fact that the defense otherwise ran out of witnesses this morning.” Tr. at 79.
The following colloquy then occurred:
THE COURT: Well, I assume that because they put him on the stand that
that was his intent to testify.
MR. KIRSCH: So did we, Your Honor.
MR. BANKS: Actually, Your Honor, it was something we felt like we
had to do, to be honest with you. So we made that decision in an ad hoc type of
fashion. So, just for the record.
THE COURT: You were told last week, both days when we ran out of
witnesses, that you better have your witnesses ready to go. I never told you you
had to put anybody on the stand today other than you needed a witness. So you
made the decision to put Mr. Barnes on the stand. He is listed as a may-call
witness. That is my understanding, it was your intent, it was Mr. Barnes’ intent to
testify.
MR. WALKER: Well, Your Honor, at this point –
THE COURT: And I will expect, as we move forward, we are going to
have this day filled with witnesses. So you better get your witnesses lined up.
MR. WALKER: Yes, Your Honor. We have a witness running late now.
He should already be here. He is running late. In fact, we have two who are
running late. Our intention is not to put any other defendants on the stand, and so
we would be forced to wait for them.
THE COURT: No. We are not waiting. I told you, you have your
witnesses here ready to testify, and if you don’t have them filled, I will not
continue.
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MR. WALKER: Well, Your Honor, it probably is best we don’t continue
because the other 5 co-defendants do not plan to testify at this point in time. We
feel it would be coerced at this point.
THE COURT: So are you telling me you are not testifying? None of you
are going to testify?
MR. WALKER: We were reserving that right to make that decision.
THE COURT: Well, then you better have your witnesses here, because
we are going forward – and if you don’t go forward, that means you are not going
to testify. I am not going to recess. The jury has been inconvenienced twice now,
having to go home early, having to be excused for lunch, to come back for a 5minute witness, and then going home for the rest of the day. So, your witnesses,
you better get them here.
Tr. at 79–81.
After some additional colloquy between the court and Mr. Walker concerning upcoming
defense witnesses, and the court’s reiteration that it would move forward with the trial if the
defense did not have their witnesses ready to go, the following exchange took place:
MR. WALKER: All right, Your Honor. Given that, and given the
instruction to the jury to either put one of those people on or to put one of us on,
we put Mr. Barnes on, who we had not –
THE COURT: No, I gave no instruction to the jury.
MR. WALKER: I’m sorry, to us.
THE COURT: Privately at the bench, I said you need to call your next
witness.
MR. WALKER: And you also said if one of them wasn’t available, we
had to put one of us on.
THE COURT: I didn’t say you had to put one of you on. I said if you
intended to testify, then one of you should take the stand, because we weren’t
going to continue.
MR. WALKER: Your Honor, with all due respect, I don’t remember the
phrase, “if one of us was going to take the stand.”
THE COURT: I don’t know what my exact phrasing was, but the fact of
the matter is, I did not direct you to do anything, Mr. Walker. You chose to put a
witness on the stand. He has freely testified. You can make your record for
whatever you want. But you all gave opening statements saying you were going
to put this – you were going to have this information on there, so you chose to call
him.

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That’s fine. You can make whatever record you want for appeal, but I
never told you you had to put one of you on the stand. I said we are moving
forward, call your next witness.
MR. WALKER: I would like to make this statement for the record. When
we approached the bench, your words to us were “Put one of your witnesses on or
one of the defendants will have to testify.” In response to those statements and
our understanding, we put Mr. Barnes on, who we had not made a decision on
whether or not he would testify at this point.
And at this point we are not – we are not – have not made a decision for
any of the other 5 co-defendants to testify. And at that point we had not made a
decision for Mr. Barnes to testify. So at this point –
THE COURT: Now, earlier, as I recall in this trial, you said all six of you
intended to testify.
MR. WALKER: Your Honor, we were evaluating that, and had not made
a final decision.
THE COURT: You told me you all intended to testify.
MR. WALKER: Well, Your Honor, I don’t remember when we made that
statement, but we said we were on the may-call.
THE COURT: At the time, I will just say, if your understanding was that
I directed you to put one of you on, you should have made that on the record
before you put Mr. Barnes on the stand.
MR. WALKER: Well, Your Honor, I am saying for the record that at that
point, we felt compelled to put Mr. Barnes on the stand, given your instruction.
That was not our free will decision at that point. And that’s for the record. And
we would also motion the Court that we withdraw that testimony and prevent
cross-examination –
THE COURT: Denied.
MR. WALKER: -- by the Government.
THE COURT: Denied. All right. Ms. Seeman, please bring in the jury.
Tr. at 107–10.
The jury was brought in, and the government cross-examined Mr. Barnes. However,
while the cross-examination was in progress, Mr. Walker interrupted an answer and stated that
he was moving that Mr. Barnes “plead the Fifth Amendment” and asking for “a retrial based on
our . . . being forced to testify.” Tr. at 129. Another bench conference followed, during which
the court explained that Mr. Walker was not Mr. Barnes’ lawyer and could not give him advice,

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although Mr. Barnes could assert that right. The government objected to the court’s allowing
Mr. Barnes to plead the Fifth in the middle of its cross-examination, but the court responded that
it was not going to force Mr. Barnes to testify if he didn’t want to. Tr. at 130.
Following a lunch break, Mr. Barnes informed the court that he objected to further
testimony and wished to assert his privilege not to incriminate himself. He told the court that he
had not been advised of his Fifth Amendment rights prior to testifying, and that he had taken the
stand because “[y]ou said one of us has to take the stand.” Tr. at 136–37. The court said that
Mr. Barnes had volunteered to take the stand and asked why he was the one who did. Mr.
Barnes responded that someone had to take the stand because the court had said so. The court
again denied that characterization of her instruction and again asked him why he took the stand.
Mr. Barnes responded that “I was compelled to take the stand from our discussion up at the
bench, as we approached the bench.” Tr. at 137. Mr. Walker then announced that he had
suffered “extreme prejudice” as a result of the court’s “compelling of one of my co-defendants to
testify.” Id. The court again denied compelling Mr. Barnes to testify. Tr. at 138.
Moments later, Mr. Walker suggested that the transcript of the bench conference would
resolve the issue. The court responded that it understood that the transcript had already been
provided to him, but Mr. Walker said that the transcript was of the wrong bench conference.
When advised that it was the only bench conference at 9:55 a.m., and that it had occurred before
Mr. Barnes was called to the stand, Mr. Walker indicated that the bench conference had not been
transcribed in its entirety. Mr. Banks asked to see a transcript of an earlier bench conference to
verify that statements the defendants attributed to the court were in fact made, and the court
advised that that transcript would be provided at the end of the day. Tr. at 138–40.

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Mr. Barnes moved for a mistrial on the ground that the court had compelled him to
testify. Tr. at 146. After further discussion as to whether the court had or had not compelled the
defendants to call one of their own as a witness, the court denied the motion for a mistrial. Tr. at
150–53. The government then proposed that the court give “curative instructions,” one striking
and instructing the jury to disregard Mr. Barnes’ testimony in light of his decision to assert his
Fifth Amendment rights and the other reminding them that statements or objections by attorneys
or defendants who are not testifying should not be considered. Tr. at 153–54. Mr. Walker
responded that the defendants wished to see the transcript of the bench conference before
proceeding. Tr. at 154. The court instructed the court reporter, Darlene M. Martinez, to give the
defendants a transcript of the bench conference. Tr. at 155. The government argued, and the
court agreed, that it was up to Mr. Barnes to decide whether to strike his testimony or to proceed
with cross-examination. Tr. at 157. Mr. Barnes then indicated that he did not want a curative
instruction and instead wished to finish the cross-examination while reserving his right to plead
the Fifth. Tr. at 156–57, 161. When government counsel resumed his cross-examination, Mr.
Barnes pled the Fifth in response to every remaining question. Tr. at 162–68.
Judge Arguello later indicated in a minute order that the parties were provided an
unedited copy of the transcript of the bench conference on the same day, October 11, 2011, and
that the reporter’s original notes were on file at the Clerk’s Office and could be inspected by any
member of the public. [ECF No. 633]. The plaintiffs in the present case have disputed this
minute order and denied that they were provided with a copy of the unedited transcript at that
time. Second Amended Complaint [ECF No. 30 in the present case] at ¶ 17. That dispute is not
one that I can resolve by taking judicial notice, and for present purposes I will assume the truth
of the plaintiffs’ allegation.

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In any event, the transcript (edited and unedited) does not resolve the dispute. The final
transcript is quoted supra at page 2 of this Order in its entirety. No statement like that which was
recalled by the court or that which was recalled by the defendants appears in the transcript. As I
will discuss later, the unedited version of the transcript (see Exhibits A, B, and C to this Order)
similarly does not contain either version of what Judge Arguello is purported to have said.
However, there is no dispute that something was said that does not appear in the
transcript. Judge Arguello addressed the incompleteness of the transcript of the bench
conference in a written order issued on June 28, 2012 denying five defendants’ motions for a
judgment of acquittal or new trial based upon the alleged Fifth Amendment violation. [ECF No.
753]. The court disputed defendants’ recollection that she had ordered any defendant to testify
and reiterated that she had advised the defendants that if they intended to testify, one of them
should take the stand, because she was not going to continue to wait for other witnesses to be
available. “Unfortunately,” the court wrote, “this portion of the sidebar was not transcribed by
the reporter.” Id. at 14. The judge offered no explanation at that time as to why one of her
statements was not recorded.
The court returned to the subject several months later. The defendants had tendered a
proposed “stipulation” to settle the transcript pursuant to Fed. R. App. P. 10(c). [ECF No. 832].
They stated that they recalled “comments made by this Court that if their witnesses were not
immediately available that one of the defendants would have to testify; if they did not have
someone to testify, then this Court would rest their case.” Id. at 2. In a written order issued on
October 16, 2012, Judge Arguello rejected the proposed stipulation. [ECF No. 846]. She again
acknowledged that a statement she had made was not recorded: “For whatever reason, whether
the parties spoke too far from the microphone or the court reporter took off her headphones, the

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court reporter did not hear everything that was said at the sidebar and therefore did not transcribe
anything besides what is contained in the edited transcript.” Id. at 3. She reiterated that the
defendants had been provided with everything in the court’s possession, referring back to her
order denying a defense motion for reconsideration and her order denying defendant Banks’
motion for judgment of acquittal. Id. at 3 n.2. By way of settling the record, the judge repeated
what she had said in denying the motion for judgment of acquittal: “I said if you intended to
testify, then one of you should take the stand because we weren’t going to continue.” Id. at 5.
The Present Case
This case was originally filed in the Denver District Court but was removed to this Court
on diversity grounds. The original plaintiff was “A Just Cause,” said to be a 501(c)(3) non-profit
organization doing business in Colorado Springs. The original defendant was Ms. Martinez, the
court reporter who recorded and transcribed the criminal trial. The gist of the original Complaint
[ECF No. 4]2 was that the plaintiff had paid Ms. Martinez $9,450 for a transcript of the trial, but
Ms. Martinez had not produced a complete transcript. Plaintiff alleged that Ms. Martinez “failed
to provide a transcript of the trial proceeding in United States v. Banks, et al., case number
09CR266.” Id. at ¶ 14. The Complaint was arguably somewhat confusing. In one paragraph it
referred to the “tort, which is the basis of this action,” id. at ¶ 3, but the only claim for relief was
for breach of contract. Id. at ¶¶ 12–16.
The government moved to substitute the United States for Ms. Martinez as the defendant
“to the extent the Complaint alleges a common law tort action against Ms. Martinez arising out
of actions taken within the scope of her employment as an employee of the United States.” [ECF

2

This citation to the docket, along with future citations, refers to the docket in the present action, not the
criminal case.
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No. 7]. The Court granted the motion and dismissed the case with prejudice as to Ms. Martinez
to the extent that she was being sued for common law torts. [ECF No. 8].
A Just Cause then retained new counsel and filed a First Amended Complaint [ECF No.
13]. The United States and Ms. Martinez were named as Defendants. Plaintiff alleged that
during the October 11, 2011 bench conference “[t]he court admonished the defendants for failing
to have witnesses available to testify and informed them that if the defense did not have a
witness ready to testify immediately, one of the defendants would have to testify, otherwise, the
court would rest the defense case.” Id. at ¶ 8. Plaintiff further alleged that, following the bench
conference, Mr. Barnes took the stand and testified for approximately 37 minutes until a codefendant realized that there had been a Fifth Amendment violation and lodged an objection,
following which the defendants moved to withdraw Mr. Barnes’ testimony on the ground that the
court had compelled him to testify. Id. at ¶ 10. The First Amended Complaint repeated the
allegation that Ms. Martinez had failed to produce a complete transcript. Id. at ¶ 13. But it
added allegations that Ms. Martinez had not filed her original shorthand notes with the Clerk of
Court; that no alternative method of reporting the trial proceedings has been provided; and that
the record cannot be adequately reconstructed. Id. at ¶¶ 26–27. The First Amended Complaint
asserted claims of breach of contract, breach of statutory duty, constitutional violation pursuant
to Bivens, and negligence.
Defendants filed their first motion to dismiss under Rules 12(b)(1) and 12(b)(6). Before
this Court addressed the motion, however, it held a scheduling conference on January 10, 2014.
During the conference I advised counsel for the parties of my understanding that a court
reporter’s notes (meaning the marks produced by the reporter’s machine that are not readable by
a layperson) are filed with the Clerk’s Office; that the computer generates an unedited rough

10

draft of a transcript from the notes; that a court reporter writes over the unedited draft when he or
she prepares a final transcript; but that a duplicate of the unedited version can still be produced
from the notes; and that it could therefore be determined definitively in the Banks case whether
the court reporter altered something between when it was initially recorded and when it became
final. Transcript of Scheduling Conference [ECF No. 29] at 5–8. Plaintiff’s counsel seemed to
indicate that he agreed with the Court’s understanding. Id. at 12.
Following the scheduling conference, A Just Cause filed a Second Amended Complaint.
[ECF No. 30]. In this version Kendrick Barnes, one of the six Banks defendants and the one who
testified during the criminal trial, was added as a plaintiff. Notwithstanding the discussion at the
scheduling conference about the filing of reporters’ notes and the ability to generate an unedited
transcript from the notes, the allegations about Ms. Martinez in this new version are even
stronger: “Ms. Martinez destroyed the unedited version of the transcripts and failed to file her
original shorthand notes or other original records with the clerk. As such, her original notes or
other original records were not available in the office of the clerk for inspection.” Id. at ¶ 18.
The Second Amended Complaint did, however, strike one of the four previous causes of action:
breach of statutory duty. The three remaining claims are for breach of contract, constitutional
violation pursuant to Bivens, and negligence. See id. at ¶¶ 19–51.
Defendants moved to dismiss the Second Amended Complaint, and that is the motion
addressed in this Order. But in preparing this Order, I decided to investigate further, once again
by taking judicial notice of the records of the court. Specifically, I obtained from the Clerk’s
Office a copy of Ms. Martinez’s original notes of the disputed bench conference, which is
attached to this Order as Exhibit A. I obtained a print out of the unedited transcript of the bench
conference, generated from the notes. It is attached as Exhibit B. I also obtained a print out of

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the screen of the monitor of Judge Arguello’s courtroom deputy, which shows what was
displayed via the real-time feed as the bench conference occurred. This is attached as Exhibit C.
I cannot, of course, read the notes. But anyone can read the unedited transcript (Ex. B)
and compare it to the final, official transcript. The comparison plainly demonstrates that the
reporter made no substantive changes in her preparation of the final transcript. The courtroom
deputy’s screen, as I would have expected, is almost identical to the unedited transcript. The
only difference is that the computer substituted “Mr. Walker” for “Walk walk” by translating
“Walk walk” from the reporter’s dictionary. The significance of the courtroom deputy’s screen
is that it prints out a continuous indication of the time when the recording was made. There is no
time gap, which potentially would be present if Ms. Martinez had deleted something from her
original recording.
As I have said, it is undisputed that Judge Arguello said something that does not appear
in the transcript – either the unedited or the final version. I do not know what she said. The
Banks defendants’ and Judge Arguello’s respective recollections of what was said are set out in
the record of the criminal case, and the appellate court will determine what conclusions to draw.
But I can say some things with certainty. First, the plaintiffs have not alleged that Ms. Martinez
intentionally failed to record something that she heard. Second, the plaintiffs have not alleged
that Ms. Martinez deleted anything from what she recorded (and the attached documents tend to
confirm that she did not). Third, the notes were preserved and filed with the Clerk’s Office.
Fourth, a duplicate of the unedited transcript can be produced from the notes. Fifth, there is no
substantive difference between the unedited transcript and the final, official version. There is,
therefore, no “missing transcript,” and nothing relevant to what occurred during the bench
conference has been destroyed.

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As noted above, the Second Amended Complaint asserts three claims: (1) breach of
contract; (2) violation of Plaintiffs’ constitutional rights (a Bivens claim); and (3) negligence.
[ECF No. 30 at ¶¶ 19–51]. I turn now to the three claims and to Defendants’ motion to dismiss
all three. The issues have been fully briefed.
ANALYSIS
I.

FIRST CLAIM: BREACH OF CONTRACT.
A Just Cause alleges that it contracted with Ms. Martinez “to provide stenography

services for the entire trial proceedings” in the criminal case, but because the transcript omits a
statement made by Judge Arguello during the bench conference that occurred at approximately
9:55 a.m. on October 11, 2011, Ms. Martinez breached the contract. It claims damages for itself
and for Mr. Barnes as a third-party beneficiary of the contract, against both defendants, in the
amount paid for the transcript, $9,450.
The problem is that this claim misconceives the role and responsibility of a court
reporter. Neither A Just Cause nor any other party to a federal court case engages the reporter to
provide stenography services for the proceedings. The reporter is an employee of the federal
government. She has a statutory duty to record the proceedings. Specifically, a reporter’s duty
under the Court Reporters Act is to record the proceedings, including bench conferences,
verbatim. 28 U.S.C. § 753(b). No request by or contract with a party is required. United States
v. Haber, 251 F.3d 881, 889 (10th Cir. 2001). The same statute requires reporters to transcribe
the original records or any part thereof at the request of a party who has agreed to pay the fee
therefor. That is what A Just Cause contracted for here, and that is what Ms. Martinez delivered
– a transcript of the original record.

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Whether the fact that one of the judge’s statements was not recorded was the reporter’s
fault, or the judge’s fault, or no one’s fault, is a matter on which I express no opinion. Certainly
the duty to record proceedings verbatim requires reporters to record what transpires “as
accurately as possible.” Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 436 (1993). But we
are dealing with human beings attempting to accomplish the difficult job of getting everything
down, no matter how inaudible a speaker might be. In any event, I conclude as a matter of law
that the undisputed or at least indisputable facts here do not support a claim sounding in breach
of contract.3
II.

SECOND CLAIM: CONSTITUTIONAL VIOLATION/BIVENS.
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the Supreme

Court “recognized for the first time an implied private right of action for damages against federal
officers alleged to have violated a citizen’s constitutional rights.” Correctional Services Corp. v.
Malesko, 534 U.S. 61, 66 (2001). In their Second Claim in the Second Amended Complaint
plaintiffs assert a Bivens claim solely against Ms. Martinez in her individual capacity. They
allege that her failure to record the statement they attribute to Judge Arguello during their
criminal trial “violated a ‘clearly established’ constitutional right, namely the right to adequate
review of the criminal convictions in the underlying case, i.e., a sufficiently complete record, and
the right to timely pursue an appeal.” [ECF No. 30 at ¶ 32].
In further explanation, plaintiffs allege that “the criminal defendants in the underlying
action including Plaintiff Kendrick Barnes have suffered substantial damages and have been
deprived of their constitutional due process rights including an inordinate delay in having their
appeals decided.” Id. at ¶ 34. Plaintiffs add that “A Just Cause has incurred an economic
3

Because of this disposition of the contract claim, I do not reach or decide whether Ms. Martinez could
be considered to have entered into the contract with A Just Cause in her individual capacity.
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detriment, a waste of its limited resources, and a frustration of its purpose of promoting
accountability in the judicial process.” Id. at ¶ 35.
Among other arguments, defendants ask that I not extend Bivens beyond the three
circumstances in which the Supreme Court has applied it: alleged Fourth Amendment violations
by federal officers, alleged violations of the equal protection component of the Due Process
Clause of the Fifth Amendment; and alleged Eighth Amendment violations. [ECF No. 32 at 11–
12]. I need not reach or decide that issue. It is enough to conclude, as I do, that the plaintiffs fail
properly to plead a Bivens claim under Rule 12(b)(6).
The Supreme Court has held that negligent acts that cause unintended deprivations of life,
liberty, or property are not actionable under § 1983 or Bivens. Plaintiffs allege that “[b]ecause of
Ms. Martinez’s failure accurately to transcribe and timely to produce a complete copy of the trial
transcripts, the criminal defendants in the underlying action including Plaintiff Kendrick Barnes
have . . . been deprived of their constitutional due process rights including an inordinate delay in
having their appeals decided.” Second Amended Complaint [ECF No. 30] at ¶ 34. But at no
point do the plaintiffs allege that Ms. Martinez acted intentionally or deliberately when she failed
to record the statement at issue. Rather, their claims sound in negligence; in fact, one of the
three causes of action asserted against Ms. Martinez is for negligence in failing to record the
bench conference verbatim. Id. at ¶¶ 36–51.
In 1981, the Supreme Court heard and decided Parratt v. Taylor, 451 U.S. 527 (1981),
overruled in part by Daniels v. Williams, 474 U.S. 327 (1986). The case involved a state prison
inmate who brought a § 1983 action against prison officials, alleging a constitutional violation
(deprivation of property without due process) arising from the officials’ negligent acts. Id. at
530. Justice Rehnquist, writing for the Court, held that mere negligence could support a claim

15

for relief under § 1983. Id. at 534–35. He based his decision on the text of the statute, which
does not require a particular state of mind before a deprivation becomes actionable. Id.
Five years later the Court reversed itself, overruling Parratt in Daniels v. Williams, 474
U.S. 327 (1986). Justice Rehnquist once again delivered the opinion of the Court. This time, he
concluded that “the Due Process Clause is simply not implicated by a negligent act of an official
causing unintended loss of or injury to life, liberty, or property.” Id. at 328 (emphasis in
original). In the case, a state inmate sought to recover damages for back and ankle injuries
allegedly sustained when he slipped on a pillow negligently left on the stairs by a prison official.
Id. The Court found that the claim was not actionable under § 1983. In reexamining its earlier
position in Parratt, the Court found that injuries arising from negligent conduct could not be
considered a “deprivation in the constitutional sense.” Id. at 330 (citing Parratt, 451 U.S. at 548
(Powell, J., concurring in the result)) (emphasis in original). “Not only does the word ‘deprive’
in the Due Process Clause connote more than a negligent act, but we should not ‘open the federal
courts to lawsuits where there has been no affirmative abuse of power.’” Id. (citing Parratt, 451
U.S. at 548–49 (Powell, J., concurring in the result)). The Court “overrule[d] Parratt to the
extent that it states that mere lack of due care by a state official may ‘deprive’ an individual of
life, liberty, or property under the Fourteenth Amendment.” Id. at 330–31.
This rule applies equally in Bivens actions brought under the Due Process Clause of the
Fifth Amendment. See Schweiker v. Chilicky, 487 U.S. 412, 447 (1988) (“Moreover, in order to
prevail in any Bivens action, recipients such as respondents must . . . prove a deliberate abuse of
governmental power rather than mere negligence . . . .”); see also McKinney v. Revell, 364 F.
App'x 430, 431–32 (10th Cir. 2010) (unpublished) (holding that because the plaintiff, a federal
inmate, “does not assert an intentional loss or destruction of his property,” but instead asserts

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mere negligence, “his [Bivens] allegations fall short of supporting a due process claim”).
Because the Bivens action is based on Ms. Martinez’s accidental failure to record the bench
conference verbatim, any alleged deprivation was negligently procured and unintentional at
best.4
III.

THIRD CLAIM: NEGLIGENCE.
Plaintiffs’ Third Claim, asserted against the United States and against Ms. Martinez in

her individual and official capacities, alleges that Ms. Martinez negligently performed her
statutory duties under 28 U.S.C. § 753(b) by (1) failing to record the bench conference on
October 11, 2011 verbatim; (2) failing to transcribe and to provide a transcript of the proceeding
to A Just Cause; and (3) failing to file her notes with the Clerk’s Office. Second Amended
Complaint [ECF No. 30] ¶¶ 44–46. The second and third arguments were discussed above. It is
simply untrue that Ms. Martinez failed to file her notes with the Clerk’s Office or failed to
provide a transcript of the proceedings as recorded. The Court has taken judicial notice of
records in the Clerk’s Office that address those issues. For the reasons that follow, I also am not

Given this ruling, I need not further address Ms. Martinez’s “qualified immunity” argument. I will add,
however, that even if I were convinced that a Bivens claim could be asserted on these facts, I would
conclude that plaintiffs lack standing to assert it. For one thing, plaintiffs have not plausibly alleged that
they suffered an injury in fact. See Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). The Tenth Circuit
has not ruled on the merits of the Banks appeal, nor have plaintiffs provided more than a conclusory (and
implausible) allegation that Ms. Martinez’s failure to record a statement during the bench conference has
caused a delay in the processing of the appeal. There are additional reasons to doubt A Just Cause’s
standing, in particular. In order for it to establish “associational standing” it must show, among other
things, that its members would otherwise have standing in their own right. Friends of the Earth, Inc. v.
Laidlaw, 526 U.S. 167, 181 (2000) (citing Hunt v. Washington Apple Advertising Commission, 432 U.S.
333, 343 (1977)). But A Just Cause has given me no reason to suspect that its members (other than the
six Banks defendants themselves) might have standing in their own right to litigate the due process rights
of the Banks defendants. Nor does the organization’s mission to promote accountability in the justice
system give it standing to pursue a Bivens claim in its own right. It has not identified any liberty or
property interest of its own that would grant it due process rights in this situation. Its theory would
accord it standing to file suits asserting violations of its alleged constitutional rights any time it felt that a
judge, or a prosecutor, or a defense attorney, or others participating in the criminal justice system had
done something that A Just Cause considered to be improper. No authorities have been cited that would
extend the concept of standing to that extreme.
4

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persuaded that Ms. Martinez’s failure to record the bench conference completely “verbatim”
supports an actionable negligence claim.
A. The Negligence Claim Against Ms. Martinez Individually.
Plaintiffs’ assertion of a negligence claim against Ms. Martinez in her individual capacity
has been previously addressed by this Court. In its Order of August 26, 2013 the Court granted
the government’s motion to substitute the United States for Ms. Martinez to the extent plaintiffs
were asserting a tort claim. [ECF No. 8]. The Federal Tort Claims Act, 28 U.S.C. § 2671 et
seq., provides that upon certification by the Attorney General or his delegated representative that
a federal employee was acting within the scope of her employment at the time of the incident out
of which the claim arose, any civil action arising out of the incident must be deemed an action
against the United States, and the United States must be substituted as the sole defendant as to
that claim. 28 U.S.C. § 2679(d)(1). Such a certification was provided here, and the substitution
of the United States was ordered by this Court. The order expressly states, “[T]he Complaint
shall be and hereby is dismissed with prejudice as to the defendant Darlene M. Martinez to the
extent she has been sued for common law torts.” Id. at 1–2 (emphasis added).
Notwithstanding that Order, plaintiffs have chosen to reassert the same negligence claim
against Ms. Martinez in their Second Amended Complaint. The Court repeats: the United States
has been substituted as the party defendant to this tort claim. The plaintiffs’ negligence claim
asserted against Ms. Martinez has been and is dismissed with prejudice.
B. The Negligence Claim Against the United States.
As for the claim against the United States, defendants make two arguments: first,
plaintiffs have failed to state a claim upon which relief can be granted because the Federal Tort
Claims Act (“FTCA”) does not provide redress for breaches of federal statutory duties; second,

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in the alternative, the plaintiffs have not exhausted their administrative remedies as required by
the FTCA. I do not agree that plaintiffs have failed to exhaust their administrative remedies.5
But I do conclude that plaintiffs have not established that they can pursue a negligence claim
against the United States.
The Federal Tort Claims Act (“FTCA”) is a waiver of sovereign immunity. It provides in
pertinent part that “[t]he United States shall be liable [on tort claims] in the same manner and to
the same extent as a private individual under like circumstances, but shall not be liable for
interest prior to judgment or for punitive damages.” 28 U.S.C. § 2674.
Plaintiffs here allege that Ms. Martinez committed the tort of negligence when she
breached her duty under the Court Reporters Act, 28 U.S.C. § 753(b), to record all court
proceedings verbatim. Second Amended Complaint [ECF No. 30] ¶¶39, 40–46. But the FTCA
does not waive immunity as to any and all tort suits arising from the breach of a duty created by
a federal statute. Rather, “where a negligence claim is based on violation of a federal statute or
regulation, no claim will lie under the FTCA in the absence of some other duty under the
applicable state law.” Klepper v. City of Milford, Kansas, 825 F.2d 1440, 1448 (10th Cir. 1987).

5

Defendants assert that plaintiffs failed to present their claim to the appropriate federal agency and obtain
a denial before filing suit, as required by the FTCA. 28 U.S.C. § 2675(a). Defendants identify the
Administrative Office of the United States Courts (“the AO”) as the appropriate federal agency for that
purpose. But in response, plaintiffs presented copies of letters that A Just Cause has sent to politicians
and federal agencies complaining about the allegedly missing or destroyed transcript in the Banks case,
including a letter from Mr. Thurman to the Attorney General of the United States. [ECF No. 35-2]. The
Attorney General’s Office responded that the letter could better be answered by the AO and referred the
letter to that office for review and direct reply. [ECF No. 35-4]. The Director of the AO then sent a letter
to Mr. Thurman dated October 4, 2013 in which he advised that the AO has no supervisory authority over
staff court reporters in the federal courts. [ECF No. 35-6]. Rather, “[t]he reporters shall be subject to the
supervision of the appointing court and the Judicial Conference in the performance of their duties,
including dealings with parties requesting transcripts.” Id. Thus, if AO was the correct agency to notify,
I find that the plaintiffs exhausted that possible administrative remedy. If, as the AO’s letter suggested,
the correct entity was the appointing court, then I am satisfied that defendants have exhausted that
possible remedy as well. The views of the plaintiffs are well known to the Clerk’s Office in this district.
Requiring the plaintiffs to send another written communication to the Court or to the Judicial Conference
at this point would be busywork with no meaningful purpose.
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In other words, the FTCA makes the United States liable for negligence only “in the same
manner and to the same extent as a private individual under like circumstances . . . in accordance
with the law of the place where the act or omission occurred.” Ayala v. United States, 49 F.3d
607, 610 (10th Cir. 1995) (citations and internal quotation marks omitted). “Even if specific
behavior is statutorily required of a federal employee, the government is not liable under the
FTCA unless state law recognizes a comparable liability for private persons.” Id.; see also
United States v. Agronics, Inc., 164 F.3d 1343, 1345 (10th Cir. 1999) (holding that the FTCA
does not apply where the claimed negligence arises out of the failure of the United States to carry
out a federal statutory duty concerning the conduct of its own affairs); Mecca v. United States,
389 F. App’x 775, 779 (10th Cir. 2010) (unpublished) (“Dr. Mecca’s reliance on a federal
regulation, without any analogous state law duty, failed to bring the first seven claims within the
scope of the FTCA’s waiver of sovereign immunity . . . .”).
Under Colorado law, a private citizen can bring a negligence action if he can make a
prima facie showing of four elements: (1) the defendant owed a legal duty of care; (2) the
defendant breached that duty; (3) the plaintiff was injured; and (4) the defendant’s breach caused
the injury. Vigil v. Franklin, 103 P.3d 322, 325 (Colo. 2004) (en banc). “Of these, duty is the
threshold element. Only if there is a legal duty to avoid unreasonably risky conduct does the
issue of breach and then the other negligence elements arise.” Id.
The plaintiffs argue that the action should move forward because they have successfully
pleaded a claim for negligence under Colorado law. However, they fail to identify the duty of
care Ms. Martinez, a federal court reporter, owed under state law. [See ECF No. 35 at 12–14].
The allegation that Ms. Martinez breached a statutory duty under the Court Reporters Act does
not allege a breach of duty established by Colorado law. If the mere fact that Colorado

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recognizes common law negligence as a tort gave rise to an FTCA claim based on a federal
statutory duty, then there would be no limit to the FTCA claims that one could bring. But that is
not the law. To sue the United States under the FTCA for negligence, plaintiffs must show that
the court reporter owed an actionable duty to parties to litigation under Colorado law to record
court proceedings perfectly.
So far as our research discloses (and neither party has indicated otherwise) no such duty
has ever been recognized as a matter of Colorado common law. But, to plaintiffs’ benefit (even
though they have not addressed it) I have considered whether there might be a statutory duty in
Colorado on which they could hang their hat. There is, in fact, a statutory duty in Colorado that
is somewhat similar to the federal statutory duty:
The shorthand reporter, on the direction of the court, shall take down in shorthand
all the testimony, rulings of the court, exceptions taken, oral instructions given,
and other proceedings had during the trial of any cause, and in such causes as the
court may designate.
C.R.S. § 13-5-127.
Under that statute, at the direction of the court a court reporter is required to record the
proceedings during a trial. But that begs the question whether Colorado would recognize a
private right of action for damages, sounding in negligence, against a court reporter who
negligently fails to comply with the Colorado statute.
In Colorado, “[a]n implied right of action will not be inferred in a statute unless a clear
legislative intent to create such a cause of action can be discerned.” Macurdy v. Faure, 176 P.3d
880, 882 (Colo. App. 2007) (citing Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 923
(Colo. 1997)). A finding of such a clear legislative intent requires consideration of “(1) whether
the plaintiff is within a class of persons intended to be benefitted by the legislative enactment; (2)
whether the legislature intended to create, albeit implicitly, a private right of action; and (3)
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whether an implied civil remedy would be consistent with the purposes of the legislative
scheme.” Id. (numbers added). I assume, without deciding, that plaintiff Barnes might be
within a class of persons intended to be benefited by the statute. But there is nothing in this
statute that suggests a legislative intent to create an implied private right of action to recover
damages, nor would an implied civil remedy be consistent with the purposes of the legislative
scheme. The legislation simply outlines the administrative duties of a court reporter. The
sections preceding it outline the duties of the clerks of the court and bailiffs, C.R.S. §§ 13-5-125–
126, whereas the section following it provides for the method of compensation for court
reporters, C.R.S. § 13-5-128. The purpose of the legislative scheme is to define the role and
duties of court personnel; there is no indication that the legislature intended to provide for private
causes of action against court reporters regarding the performance of their duties.
In my own research I did find two cases, both in the Louisiana Court of Appeals, in
which negligence actions against state court reporters have been recognized by a state court for
unreasonable or unnecessary delays in producing a record. Hero Lands Co. v. Borello, 459 So.
2d 658, 662 (La. Ct. App. 1984); Easterling v. First of Georgia Underwriters Co., 427 So. 2d 4
(La. Ct. App. 1983). However, the Hero court relied in part on a Louisiana statute that required
court reporters to furnish a bond “for the faithful performance of his duties” and “for the purpose
of protecting litigants against any acts of incompetency or neglect of duty.” 459 So. 2d at 662
(citing LSA-R.S. 13L972(B)). This statute, the court found, “presupposes an action for damages
resulting from the court reporter’s breach of official duty.” Id. Colorado does not have a similar
statute, and C.R.S. § 13-5-127 does not use remotely similar language. In any event, I am not
inclined to assume, based on these cases in a civil law state, that Colorado’s appellate courts
might recognize a private right of action for damages in Colorado for a violation of C.R.S. § 13-

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5-127 when a court reporter simply did not hear and therefore did not record one statement made
by a judge during the course of a lengthy trial. In short, the FTCA does not provide plaintiffs a
key to the courthouse in this case.
ORDER
1. Defendants’ Motion to Dismiss [ECF No. 32] is GRANTED. Plaintiffs’ claims and
this civil action are dismissed with prejudice.
2. Defendants are awarded their reasonable costs pursuant to Fed. R. Civ. P. 54(d)(1)
and D.C.COLO.LCivR 54.1.
3. Defendants’ Motion to Stay Discovery [ECF No. 34] is DENIED AS MOOT.
DATED this 9th day of May, 2014
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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