Carrillo v. Romero
ORDER dismissing 1 Complaint without prejudice, and denying as moot 37 Motion to Dismiss, by Judge William J. Martinez on 11/21/13.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-2728-WJM-MEH
LUIS E. GUTIERREZ,
MARIA E. CARRILLO,
HUGO A. PACHECO,
LAURA P. GUTIERREZ,
GERMAN JASSO BRUNO
JOSE M. VELAZQUES,
SILVIA DORADO, and
DOUGLAS LEO ROMERO, in his official and individual capacity,
TIMOTHY EDSTROM in his official and individual capacity,
TRACI CHRISTY, in her official and individual capacity,
LAW OFFICE OF DOUGLAS L. ROMERO,
COLORADO SUPREME COURT’S OFFICE OF ATTORNEY REGULATION
JAMES S. SUDLER, in his official and individual capacity, and
KIM E. IKELER, in her official and individual capacity,
ORDER SUA SPONTE DISMISSING CASE
On October 4, 2013, Plaintiffs filed a Complaint pursuant to 42 U.S.C. § 1983
alleging that Defendants violated their constitutional rights, engaged in legal
malpractice, and breached a fiduciary duty. (ECF No. 1.) Under Federal Rule of Civil
Procedure 12(b)(6), the Court may dismiss a complaint sua sponte1 “when it is ‘patently
obvious’ that the plaintiff could not prevail on the facts alleged, and allowing him an
opportunity to amend his complaint would be futile.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). For the reasons set forth below, the Court finds that Plaintiffs’
Complaint fails to state a claim upon which relief could be granted and that amendment
would be futile.
I. FACTUAL BACKGROUND
Plaintiffs, who are Hispanic, allege in the Complaint that on January 3, 2012,
several of them filed pro se a civil complaint in Case No. 12-cv-3-WJM-MEH, asserting
that they were harmed by alleged fraudulent foreclosure practices engaged in
by the various law firms, as counsel for note holders, who allegedly conspired with
the Denver District Attorney and various local news agencies to deprive the Plaintiffs of
their homes, in violation of Plaintiffs’ federal due process and statutory rights.2 Plaintiffs
retained the Defendant Romero Law Firm to represent their interests in Civil Action No.
12-cv-3-WJM-MEH and paid a $10,000 retainer fee. (ECF No. 1 at 16.)
Plaintiffs supplied the Defendant Romero Law Firm and the law firm’s attorneys,
Defendants Romero, Edstrom, and Christy (collectively the “Romero Law Firm
Defendants”), with evidence to support their claims in that case. Plaintiffs assert that
Defendants Douglas Romero, Timothy Edstrom, and the Law Office of Douglas
Romero filed a Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) on November 19, 2013.
(ECF No. 37.) However, because the briefing on this Motion is not complete, and to avoid the
unnecessary expenditure of additional resources by any of the Defendants, the Court chooses
to dismiss this case sua sponte.
As the presiding judge over Case No. 12-cv-3, the Undersigned is very familiar with
the claims raised and proceedings held therein.
Defendant Romero failed to disclose to them, during the pendency of Case No.
12-cv-3-WJM-MEH, that he was under investigation by the Colorado Office of Attorney
Regulation Counsel (“OARC”) for ethical violations, including conversion of client funds.
Plaintiffs maintain that during the investigation, the OARC precluded Mr. Romero from
continuing to represent the plaintiffs in Case No. 12-cv-3-WJM-MEH and that the civil
action was ultimately dismissed despite Plaintiffs’ meritorious claims. (ECF No. 1 at 2024.)
In this action, Plaintiffs claim that the Romero Law Firm Defendants conspired
with Defendants OARC, James S. Sudler, and Kim E. Ikeler (together “the OARC
Defendants”) and the foreclosing law firms (the defendants in Case No. 12-cv-3-WJMMEH) to “protect the ongoing multi-billion ‘Home Theft Industry,’” in deprivation of the
Plaintiffs’ constitutional and civil rights and the Fair Housing Act. (Compl. at 20.)
Plaintiffs further assert that the Romero Defendants and the OARC Defendants
engaged in a conspiracy with “official regulatory agencies” to violate Plaintiffs’ federal
statutory and constitutional rights. (Id. at 21.) Additionally, Plaintiffs allege that
Defendant OARC maintained a groundless prosecution against Plaintiff Alfonso Carrillo
in 2012 for filing lawsuits on behalf of others, in an attempt to interfere with Plaintiff
Carrillo’s constitutional right to file complaints in state and federal court. (Id. at 25.)
Plaintiffs assert claims for deprivation of their civil rights under 42 U.S.C. §§ 1981,
1982, 1983, and 1985, and the Fair Housing Act, 42 U.S.C. § 3601, et seq., as well as
various state law tort claims. Plaintiffs further assert violations of federal criminal statutes.
They seek monetary and injunctive relief, including an order for the investigation and
suspension from the practice of law of each named individual Defendant.
II. CLAIMS AGAINST ROMERO LAW FIRM DEFENDANTS
As set forth above, Plaintiffs allege that the Romero Law Firm Defendants
violated their rights under 42 U.S.C. §§ 1981, 1982, 1983, and 1985, and the Fair
Housing Act, 42 U.S.C. § 3601, et seq. The Court will address each in turn below.
To establish a prima facie case under § 1981, the Plaintiffs must show: “(1) that
[they belong to] a protected class; (2) that the defendant had the intent to discriminate
on the basis of race; and (3) that the discrimination interfered with a protected activity
as defined in § 1981.” Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1101-02
(10th Cir. 2001). Section 1981 protects four interests: (1) the right to make and
enforce contracts; (2) the right to sue, be parties, and give evidence; (3) the right to the
full and equal benefit of the laws; and (4) the right to be subjected to like pains and
punishments. See Shawl v. Dillard’s, Inc., 17 F. App’x 908, 910 (10th Cir. 2001); 42
U.S.C. § 1981.
The Complaint’s “Causes of Action” section provides: “Violation and Interference
of 42 U.S.C. § 1981; (a) Equal protection rights, (b) Due Process in “Making and
enforcing contracts” and, (c) Protection against impairment.” (ECF No. 1 at 5.)
However, the factual allegations in the Complaint fail to directly link any of the allegedly
wrongful acts with the right to make and enforce contracts. The Court takes no position
on whether Plaintiffs may be able to bring a claim against the Romero Law Firm
Defendants for breach of contract or ineffective assistance of counsel based on the way
in which these Defendants represented (or failed to represent) Plaintiffs’ interests in
Case No. 12-cv-3. However, because Plaintiffs have made no effort to tie any of their
factual allegations to a § 1981 claim, the Court has little difficulty concluding that
Plaintiffs have failed to allege sufficient facts to put Defendants on notice as to the
nature of such claim. This failure is a basis for dismissal. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 546 (2007) (to survive a Rule 12(b)(6) dismissal, a complaint
“requires more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.”); Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009)
(stating that a plaintiff’s complaint must set forth more than a threadbare recital “of the
elements of a cause of action, supported by mere conclusory statements”).
Section 1982 provides that “[a]ll citizens of the United States shall have the same
right . . . as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and
convey real and personal property.” The statute is intended to prohibit discrimination
based on race in the sale and rental of real and personal property. See Tennessee v.
Lane, 541 U.S. 509, 561 (2004) (Scalia, J., dissenting) (describing § 1982 as “banning
public or private racial discrimination in the sale and rental of property”); Jones v. Alfred
H. Mayer Co., 392 U.S. 409, 413 (1968); see also Delaunay v. Collins, No. 02-8097, 97
F. App’x 229, 233 (10th Cir. March 2, 2004) (discussing elements of § 1982 claim).
Plaintiffs do not allege facts in the Complaint to show that the Romero Law Firm
Defendants treated them differently than Caucasian persons with regard to any of the
property rights protected by § 1982. While the nature of Plaintiffs’ claims in Case No.
12-cv-3-WJM-MEH related to their rights to possess and own real property, nothing
about the claims in this case involves real property. Plaintiffs had an attorney-client
relationship with the Romero Law Firm Defendants where they paid these Defendants a
sum of money in exchange for attorney services. There is no real property implicated in
that kind of relationship. Accordingly, the Court finds that Plaintiffs have failed to state
a § 1982 claim.
Section 1983 provides a cause of action against a person who deprives another
of a constitutional or federal statutory right while acting under color of state law. See
Adickes v. S.H. Kress & Co., 398 U.S. 144, 151 (1970); see also Lugar v. Edmondson
Oil Co., 457 U.S. 922, 935 & n.18 (1982) (liability attaches only to conduct occurring
under color of state law, and conduct constituting “state action” under the Fourteenth
Amendment satisfies this requirement). “[T]he under-color-of-state-law element of §
1983 excludes from its reach merely private conduct, no matter how discriminatory or
wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999).
Plaintiffs cannot state a § 1983 claim against the Romero Law Firm Defendants
because they are indisputedly private entities or individuals. Plaintiffs make no
allegation as to any actions taken under the color of law. Therefore, regardless of
whether the Romero Law Firm Defendants acted with a discriminatory purpose, or
otherwise violated Plaintiffs’ constitutional rights, § 1983 does not provide relief.
Additionally, to the extent Plaintiffs attempt to allege that the Romero Law Firm
Defendants conspired with state officials to deprive them of rights, these allegations fail
to state a claim as they are vague and conclusory. See Tonkovich v. Kan. Bd. of
Regents, 159 F.3d 504, 533 (10th Cir. 1994) (“Conclusory allegations of conspiracy are
insufficient to state a valid § 1983 claim.”); Durre v. Dempsey, 869 F.2d 543, 545 (10th
Cir. 1989) (to state a cause of action for conspiracy under § 1983, a plaintiff must
“allege specific facts showing agreement and concerted action among defendants.”).
For these reasons, the Court finds that Plaintiffs have failed to state a claim for a
violation of 42 U.S.C. § 1983 by any of the Romero Law Firm Defendants.
Plaintiffs bring claims under the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et
seq., and specifically § 3617. (ECF No. 1 at 5.) The FHA was “designed primarily to
prohibit discrimination in the sale, rental, financing, or brokerage of private housing and
to provide federal enforcement procedures for remedying such discrimination . . . .”
Lyons v. Kyner, 367 F. App’x 878, 883 (10th Cir. 2010) (citing Otero v. N.Y. City Hous.
Auth., 484 F.2d 1122, 1133 (2d Cir. 1973); see also 42 U.S.C. § 3604(a) and (b). The
statute authorizes a private cause of action. See 42 U.S.C. § 3613.
The elements of a § 3617 claim are: (1) plaintiff is a member of a protected
class under the Fair Housing Act; (2) plaintiff exercised or enjoyed a right protected by
Sections 3603 through 3606, or aided or encouraged others in exercising or enjoying
such rights; (3) intentional discrimination at least partially motivated defendants’
conduct; and (4) defendants’ conduct constituted coercion, intimidation, threat, or
interference on account of having exercised, or aided or encouraged others in
exercising, a right protected under Sections 3603 through 3606.” Zhu v. Countrywide
Realty Co., 160 F. Supp. 2d 1210, 1233 (D. Kan. 2001).
Plaintiffs cannot maintain a claim against the Romero Law Firm Defendants
under the FHA because the Complaint is devoid of any allegations that the Defendants
sold or financed real property, see 42 U.S.C. § 3604, or otherwise engaged in a “real
estate-related transaction” with the Plaintiffs, as that term is defined in the FHA. 42
U.S.C. § 3605(b); see also § 3605(a) (prohibiting discrimination in a residential real
estate related transaction, or in the terms and conditions of such transaction). Nor is
there any allegation that the Romero Law Firm Defendants provided brokerage
services. See 42 U.S.C. § 3606. As such, Plaintiffs have failed to allege sufficient facts
to show that their claims against the Romero Law Firm Defendants involved rights
protected by the FHA and have therefore failed to state a claim.
Plaintiffs allege that they are bringing a “criminal complaint” and “request for
prosecution” for violations of 18 U.S.C. §§ 241, 242, 245, as well as 42 U.S.C. §§ 3631
and 14141. (ECF No. 1 at 5.) However, “[p]rivate citizens generally have no standing
to institute federal criminal proceedings.” Winslow v. Romer, 759 F. Supp. 670, 673
(D. Colo. 1991). Moreover, Plaintiffs may not rely on these criminal statutes as a basis
for this civil action because criminal statutes do not create a private right of action.
See, e.g., Newcomb v. Ingle, 827 F.2d 675, 676 n.1 (10th Cir. 1987) (recognizing that
18 U.S.C. § 241 is a criminal statute which does not provide for a private civil cause of
Accordingly, Plaintiffs have failed to state a claim under any federal criminal
The elements of a 42 U.S.C. § 1985 conspiracy claim are: (1) a conspiracy; (2)
to deprive plaintiff of equal protection or equal privileges and immunities; (3) an act in
furtherance of the conspiracy; and (4) an injury or deprivation resulting therefrom.”
Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993) (citing Griffin v. Breckenridge,
403 U.S. 88, 102-03 (1971)). Section 1985 applies only to conspiracies motivated by
“some racial, or perhaps otherwise class-based, invidiously discriminatory animus.”
Griffin, 403 U.S. at 101-02.
Section 1985(3) does not create an independent cause of action. Instead, a
plaintiff must “point to independent substantive rights enforceable in the federal courts”
to serve as a predicate violation. Wheeler v. Swimmer, 835 F.2d 259, 261 (10th Cir.
1987). As set forth above, Plaintiffs have failed to state a claim for any independent
substantive right enforceable in federal court. As such, Plaintiffs have failed to state a
claim for conspiracy to violate such rights.
Moreover, “[s]ection 1985(3) conspiracy claims cannot stand on ‘vague and
conclusory allegations’; but rather, ‘must be plead with some degree of specificity.’”
O’Conner v. St. John’s Coll., 290 F. App’x. 137, 141 (10th Cir. 2008). In the section
entitled “Causes of Action”, Plaintiffs list “Conspiracy to Interfere with Civil Rights
Prohibited under 42 U.S.C. § 1985”. (ECF No. 1 at 5.) Aside from this, the only
allegations that could potentially relate to a § 1985 claim are general uses of the word
“conspiracy” throughout the Complaint. Plaintiffs’ Complaint is full of exactly the kind of
vague and conclusory allegations that are insufficient to state a § 1985 claim.
Finally, to the extent Plaintiffs allege that the Romero Law Firm Defendants
conspired with each other, or with other private individuals or entities, they cannot state
a § 1985 claim. The statute does not apply to private conspiracies that are “aimed at a
right that is by definition a right only against state interference,” but applies only to such
conspiracies as are “aimed at interfering with rights . . . protected against private, as
well as official, encroachment.” Bray v. Alexandria Women’s Health Clinic, 506 U.S.
263, 278 (1993). To date, the only rights recognized as protected against both private
and official interference are the Thirteenth Amendment rights to interstate travel and to
be free from involuntary servitude. See United States v. Kozminski, 487 U.S. 931
(1988); (involuntary servitude); United States v. Guest, 383 U.S. 745, 759 n.17 (1966)
(interstate travel). Neither of these rights are implicated in this case and, as such,
Plaintiffs cannot state a § 1985 claim related to a private conspiracy.
III. CLAIMS AGAINST STATE DEFENDANTS
Plaintiff has sued Defendants James S. Sudler and Kim E. Ikeler in both their
official and personal capacities, as well as the Colorado Supreme Court’s OARC.
(Compl. ¶ 2.4.5-2.4.7.) The Court will address the claims against these entities in turn
Claims Against the OARC and Official Capacity Claims
The State of Colorado and its entities are protected by Eleventh Amendment
immunity. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989); Meade v.
Grubbs, 841 F.2d 1512, 1525-26 (10th Cir. 1988). “It is well established that absent an
unmistakable waiver by the state of its Eleventh Amendment immunity, or an
unmistakable abrogation of such immunity by Congress, the amendment provides
absolute immunity from suit in federal courts for states and their agencies.” Ramirez v.
Okla. Dep’t of Mental Health, 41 F.3d 584, 588 (10th Cir. 1994). The State of
Colorado has not waived its Eleventh Amendment immunity, see Griess v. Colo.,
841 F.2d 1042, 1044-45 (10th Cir. 1988), and congressional enactment of 42 U.S.C. §
1983 did not abrogate Eleventh Amendment immunity, see Quern v. Jordan, 440 U.S.
332, 340-345 (1979). The Eleventh Amendment applies to all suits against the state
and its agencies, regardless of the relief sought. See Higganbotham v. Okla. Transp.
Comm’n, 328 F.3d 638, 644 (10th Cir. 2003). Therefore, all claims against the OARC
are barred by the Eleventh Amendment and must be dismissed.
Additionally, the claims brought against governmental officers in their official
capacities are essentially claims brought against the governmental entity itself.
Kentucky v. Graham, 473 U.S. 159, 165 (1985). As Defendants Sudler and Ikeler are
employed by the State of Colorado’s Office of Attorney Discipline, Plaintiffs’ official
capacity claims are essentially brought against the state. As such, these claims are
barred by the Eleventh Amendment and must be dismissed. See United States v.
Sherwood, 312 U.S. 584, 586 (1941); Pleasant v. Lovell, 876 F.2d 787, 793 (10th Cir.
Individual Capacity Claims
The Complaint does not specify which claims Plaintiffs bring against Defendants
Sudler and Ikeler in their individual capacities. Thus, in the interest of completeness,
the Court will address all of the statutes cited by Plaintiffs.
Claims under § 1981, § 1982, § 1985, FHA, and federal criminal statutes
To the extent Plaintiffs bring claims against Defendants Sudler and Ikeler under
the FHA, § 1981 or § 1982, these claims fail for the same reasons set forth above as to
the Romero Law Firm Defendants. Specifically, there is no indication that either Sudler
or Ikeler engaged with Plaintiffs with regard to any real or personal property, which
dooms Plaintiffs’ FHA and § 1982 claims. Moreover, Plaintiffs have failed to the
existence of a contract between themselves and Sudler or Ikeler, or that either of these
Defendants interfered with an existing contract. As such, Plaintiffs have failed to state a
§ 1981 claim. With regard to § 1985, Plaintiffs have failed to allege any conspiracy to
violate constitutional rights with the requisite specificity. Moreover, Plaintiffs have failed
to plead sufficient facts establishing a predicate constitutional violation. Finally,
Plaintiffs cannot bring a claim under federal criminal statutes against these Defendants.
Accordingly, all of these claims must be dismissed.
Plaintiffs appear to bring a § 1983 claim against Sudler and Ikeler relating to an
action brought by these Defendants against Mr. Carrillo in the Colorado Supreme Court
for unauthorized practice of law. (ECF No. 1 at 25.) The Court initially notes that only
Plaintiff Carrillo is involved in the case alleging unauthorized practice of law and, as
such, to the extent he had a claim arising out of that action, it is not properly joined with
the rest of the claims alleged here. See Fed. R. Civ. P. 20(a).
More significantly, however, Defendants Ikeler and Sudler are entitled to
absolute prosecutorial immunity for their involvement with the prosecution of Plaintiff
Carrillo for unauthorized practice of law. “[B]ar officials charged with the duties of
investigating, drawing up, and presenting cases involving attorney discipline enjoy
absolute immunity from damage claims for such functions.” Clulow v. State of Okla.,
700 F.2d 1291, 1298 (10th Cir. 1983), overruled on other grounds by Garcia v. Wilson,
731 F.2d 640 (10th Cir. 1984); see also McCormick v. City of Lawrence, 253 F. Supp.
2d 1156, 1166 (D. Kan. 2003) (finding that two state officials charged with investigating
the unauthorized practice of law were entitled to absolute immunity against any claims
arising from that investigation). Given this immunity, Plaintiffs § 1983 claims against
Defendants Sudler and Ikeler must be dismissed.
IV. STATE LAW CLAIMS AGAINST ALL DEFENDANTS
Plaintiffs also bring a number of claims for legal malpractice, breach of contract,
breach of fiduciary duty, negligence, and violation of the Colorado Professional Rules of
Conduct. (ECF No. 1 at 5.)
Plaintiffs’ Complaint alleges that this Court has jurisdiction under 28 U.S.C. §
1331 based on the claims brought under federal laws. (ECF No. 1 at 10.) However,
these claims have now been dismissed and, therefore, the Court has an independent
duty to examine its continuing jurisdiction. Carnegie–Mellon Univ. v. Cohill, 484 U.S.
343, 350 (1988).
All of Plaintiffs remaining claims are grounded in state law. A federal court does
not have independent jurisdiction over state law claims unless those state law claims
“turn on substantial questions of federal law.” Grable & Sons Metal Prods., Inc. v.
Darue, 545 U.S. 308, 312 (2005). Having reviewed the allegations in the Complaint,
the Court finds that none of the state law claims at issue in this case turn on questions
of federal law.
Federal supplemental subject matter jurisdiction over state law claims “is
extended at the discretion of the court and is not a plaintiff’s right.” TV Commc’ns
Network, Inc. v. Turner Network Television, Inc., 964 F.2d 1022, 1028 (10th Cir. 1992)
(citing United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)). “[A] federal court
should consider and weigh in each case, and at every stage of the litigation, the values
of judicial economy, convenience, fairness, and comity in order to decide whether to
exercise jurisdiction over a case brought in that court involving pendent state-law
claims.” Carnegie–Mellon Univ., 484 U.S. at 350. In the interest of comity and
federalism, district courts are advised against making “needless decisions of state law.”
TV Commc’ns Network, Inc., 964 F.2d at 1028. If federal claims are dismissed before
trial, leaving only issues of state law, the federal district court should ordinarily decline
to exercise supplemental jurisdiction by dismissing the case without prejudice. Brooks
v. Gaenzle, 614 F.3d 1213, 1229 (10th Cir. 2010) (citing Carnegie–Mellon Univ., 484
U.S. at 350).
The instant suit is in its very early stages. Most of the Defendants have yet to
appear or defend against this case. Thus, issues of judicial economy and fairness are
not implicated here. See Carnegie–Mellon Univ., 484 U.S. at 350. Rather, the issues
of comity and federalism are at the forefront, because the Court would have to decide
matters of state law if it continued to exercise jurisdiction over Plaintiffs’ remaining
claims. See McWilliams v. Jefferson Cnty., 463 F.3d 1113, 1117 (10th Cir. 2006).
“Notions of comity and federalism demand that a state court try its own lawsuits, absent
compelling reasons to the contrary.” Thatcher Enters. v. Cache Cnty. Corp., 902 F.2d
1472, 1478 (10th Cir. 1990). The remaining causes of action are grounded in Colorado
common law; no federal laws are implicated by these claims. Thus, there is not a
compelling reason to maintain jurisdiction over this suit.
The Court finds that the remaining claims would be better addressed in state
court. See Gaenzle, 614 F.3d at 1229; TV Commc’ns Network, Inc., 964 F.2d at 1028;
Thatcher Enters., 902 F.2d at 1478. Accordingly, the Court declines to exercise its
supplemental jurisdiction over the remaining claims and will dismiss those claims
For the reasons set forth above, the Court ORDERS as follows:
Plaintiffs’ Complaint (ECF No. 1) is sua sponte DISMISSED WITHOUT
PREJUDICE for failure to state a claim upon which relief could be granted;
The Romero Law Firm Defendants’ Motion to Dismiss (ECF No. 37) is DENIED
The Clerk shall close this case.
Dated this 21st day of November, 2013.
BY THE COURT:
William J. Martínez
United States District Judge
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