Ellsworth v. Harris et al
ORDER to Dismiss in Part and to Administratively Close Remaining Claims by Judge Lewis T. Babcock on 12/23/14. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02933-GPG
JOSEPH A. ELLSWORTH,
MICHAEL HARRIS, Inv., in His Official and Individual Capacities,
CASSANDRA HARRIS, Inv., in Her Official and Individual Capacities,
MIRNA BURGIEGA, Tech., in Her Official and Individual Capacities,
JORGE DUNQUE, Inv., in His Official and Individual Capacities,
GEORGE MUMMA, Inv., in His Official and Individual Capacities,
KEVIN SAGAR, Inv., in His Official and Individual Capacities, and
JENNIFER DUNCAN, Par. Off., in Her Official and Individual Capacities,
ORDER TO DISMISS IN PART
AND TO ADMINISTRATIVELY CLOSE REMAINING CLAIMS
Plaintiff, Joseph A. Ellsworth, is detained at the Jefferson County Detention
Facility, in Golden, Colorado. He has filed a Prisoner Complaint challenging his state
criminal proceeding and pre-trial detention, pursuant to 28 U.S.C. § 1343 and 42 U.S.C.
§ 1983. The Defendants are alleged to be investigators for the Jefferson County
District Attorney and Sheriff’s Offices, and a parole officer.
On November 3, 2014, Magistrate Judge Boyd N. Boland issued an order
directing the Plaintiff to show cause, within 30 days, why this action should not be
dismissed. (ECF No.6). Mr. Ellsworth filed a response to the show cause order on
November 26, 2014. (ECF No. 9).
Mr. Ellsworth has been granted leave to proceed pursuant to the federal in forma
pauperis statute, 28 U.S.C. § 1915 (2013). Subsection (e)(2)(B) of § 1915 requires a
court to dismiss sua sponte an action at any time if the action is frivolous or seeks
monetary relief against a defendant who is immune from such relief. A legally frivolous
claim is one in which the plaintiff asserts the violation of a legal interest that clearly does
not exist or asserts facts that do not support an arguable claim. Neitzke v. Williams,
490 U.S. 319, 324 (1989).
The Court construes the Complaint liberally because Mr. Ellsworth is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the § 1983 claims for equitable relief will be dismissed for lack of jurisdiction. The
remainder of the case will be administratively closed pending final resolution of Plaintiff’s
underlying state criminal proceeding.
I. The Complaint
In the Complaint, Plaintiff alleges that he was arrested on August 8, 2014 by the
Defendants “for internet luring, etc.” (ECF No. 1, at 4). He states that Defendant Harris
then proceeded to call other state and federal law enforcement agencies to thank them
for “the tip” and inform them that Plaintiff was now in custody. Mr. Ellsworth alleges that
prior to his arrest, the United States Probation Department and/or the Colorado Police
Department forwarded personal information contained on his confiscated cell phone to
the Defendants “in an attempt to set him up for an arrest.” (Id. at 10). Plaintiff further
asserts that Defendant Harris lied about his prior knowledge of Plaintiff’s activities at the
September 16, 2014 state court preliminary hearing. At the conclusion of the
preliminary hearing, the state court found probable cause to bind Plaintiff over for trial.
Mr. Ellsworth claims that Defendants violated his constitutional rights when: Defendant
Harris committed perjury at the preliminary hearing; Defendants tampered with the
evidence in Plaintiff’s criminal case; Defendants framed him with false evidence in
support of the criminal charges at the preliminary hearing; and, Defendants violated his
Fourth Amendment rights by accessing the personal information on his cell phone and
using the information to arrest and prosecute him. Mr. Ellsworth seeks an award of
damages and equitable relief (criminal prosecution of the Defendants).
A. Request for criminal prosecution
Mr. Ellsworth lacks standing to initiate a criminal prosecution against the
Defendants. “A private citizen lacks a judicially cognizable interest in the prosecution or
nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). See
also Keyter v. 535 Members of 110th Congress, Nos. 08-1061, 08-1063, and 08-1064,
277 F. App’x. 825, 827 (10th Cir. May 13, 2008) (unpublished); Cok v. Cosentino, 876
F.2d 1, 2 (1st Cir. 1989) (per curiam); Connecticut Action Now, Inc. v. Roberts Plating
Co., 457 F.2d 81, 86-87 (2d Cir. 1972) (“It is a truism, and has been for many decades,
that in our federal system crimes are always prosecuted by the Federal Government,
not as has sometimes been done in Anglo-American jurisdictions by private
complaints.”); Winslow v. Romer, 759 F. Supp. 670, 673 (D. Colo. 1991) (“Private
citizens generally have no standing to institute federal criminal proceedings.”).
B. Younger abstention
Absent extraordinary or special circumstances, federal courts are prohibited from
interfering with ongoing state criminal proceedings. See Younger v. Harris, 401 U.S. 37
(1971); Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997). Abstention is
appropriate under Younger if three conditions are met: “(1) the state proceedings are
ongoing; (2) the state proceedings implicate important state interests; and (3) the state
proceedings afford an adequate opportunity to present the federal constitutional
challenges.” Phelps, 122 F.3d at 889. The abstention principles of Younger are
jurisdictional and apply whether the plaintiff seeks equitable or monetary relief. See
D.L. v. Unified School Distr. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004); Parkhurst
v. Wyoming, 641 F.2d 775, 777 (10th Cir.1981).
The first condition for Younger abstention is met because Mr. Ellsworth concedes
that the state court proceedings are ongoing. The second condition also is satisfied
because the Supreme Court “has recognized that the States’ interest in administering
their criminal justice systems free from federal interference is one of the most powerful
of the considerations that should influence a court considering equitable types of relief.”
Kelly v. Robinson, 479 U.S. 36, 49 (1986) (citing Younger, 401 U.S. at 44-45).
With respect to the third condition, Mr. Ellsworth maintains in his response to the
show cause order that he has been frustrated in his efforts to raise his claims in the
state court because his court-appointed public defender has not provided adequate
representation. However, he also alleges that he has been afforded at least one
hearing on the issue of counsel’s representation. The fact that Plaintiff did not ultimately
prevail in having his public defender removed from the case does not mean that he
lacks an opportunity to present his claims in the state court. Further, Mr. Ellsworth has
a state remedy available to challenge the probable cause ruling at his preliminary
hearing. See White v. McFarlane, 713 P.2d 366, 368-69 (Colo. 1986) (stating that “[a]
defendant seeking to challenge an erroneous ruling on probable cause may seek
extraordinary relief under C.A.R. 21.”); Abbot v. County Court, 886 P.2d 730, 734 (Colo.
1994) (stating that C.A.R. 21 is the appropriate remedy to challenge factual findings
made in a preliminary hearing).
Mr. Ellsworth “may overcome the presumption of abstention ‘in cases of proven
harassment or prosecutions undertaken by state officials in bad faith without hope of
obtaining a valid conviction and perhaps in other extraordinary circumstances where
irreparable injury can be shown.’” Phelps, 122 F.3d at 889 (quoting Perez v. Ledesma,
401 U.S. 82, 85 (1971)).
Courts have considered three factors in determining whether a prosecution is
commenced in bad faith or to harass:
(1) whether it was frivolous or undertaken with no reasonably objective
hope of success; (2) whether it was motivated by the defendant’s suspect
class or in retaliation for the defendant’s exercise of constitutional rights;
and (3) whether it was conducted in such a way as to constitute
harassment and an abuse of prosecutorial discretion, typically through the
unjustified and oppressive use of multiple prosecutions.
Phelps, 122 F.3d at 889. It is Mr. Ellsworth’s “‘heavy burden’ to overcome the bar of
Younger abstention by setting forth more than mere allegations of bad faith or
Mr. Ellsworth does not contend that the state criminal prosecution was motivated
by his class or was in retaliation for his exercise of constitutionally protected rights.
Further, the state court’s determination of probable cause at the preliminary hearing
suggests that the criminal prosecution is not frivolous. And, there is no indication that
the state criminal proceeding has been conducted in such a way as to constitute
harassment or an abuse of prosecutorial discretion. Plaintiff does not allege that the
Defendants have abused their prosecutorial discretion by engaging in unjustified and
oppressive multiple prosecutions.
Finally, Mr. Ellsworth has not shown an irreparable injury stemming from the
state court criminal prosecution. The fact that he will be forced to stand trial on the
criminal charges does not establish great and immediate irreparable injury. See Phelps,
122 F.3d at 889 (The “‘threat to the plaintiff’s federally protected rights’ is only
irreparable if it ‘cannot be eliminated by . . . defense against a single prosecution.’”)
(quoting Younger, 401 U.S. at 46).
Accordingly, the Court will dismiss without prejudice Plaintiff’s claims for
equitable relief pursuant to the doctrine of Younger abstention. However, Plaintiff's
§ 1983 claims for damages will be retained, as discussed below. See D.L. v. Unified
Sch. Dist. No. 497, 392 F.3d at 1228 (“The rationale for Younger abstention can be
satisfied . . . by just staying proceedings on the federal damages claim until the state
proceeding is final”) (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 730 (1996)
(“we have permitted federal courts applying abstention principles in damages actions to
enter a stay, but we have not permitted them to dismiss the action altogether”));
Deakins v. Monaghan, 484 U.S. 193, 202 (1988) (a district court finding that Younger
abstention is required nevertheless “has no discretion to dismiss rather than to stay
claims for monetary relief that cannot be redressed in the state proceeding.”).
C. Applicability of Heck
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held:
[W]hen a state prisoner seeks damages in a § 1983 suit, the district court
must consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated.
512 U.S. at 487. Under the Heck rule, the accrual of a cause of action is deferred until
the conviction or sentence has been invalidated. See Wallace v. Kato, 549 U.S. 384,
392-93 (2007). Heck does not apply to anticipated future convictions. See id. at 393
(2007) (“[T]he Heck rule for deferred accrual is called into play only when there exists a
conviction or sentence that has not been invalidated, that is to say, an outstanding
criminal judgment.” (quotations, emphasis, and ellipses omitted)).
In Wallace, the Supreme Court instructed:
If a plaintiff files a false-arrest claim before he has been convicted (or files
any other claim related to rulings that will likely be made in a pending or
anticipated criminal trial), it is within the power of the district court, and in
accord with common practice, to stay the civil action until the criminal case
or the likelihood of a criminal case is ended. [Heck, 512 U.S.] at 487-488,
n. 8, 114 S.Ct. 2364 (noting that “abstention may be an appropriate
response to the parallel state-court proceedings”); Quackenbush v.
Allstate Ins. Co., 517 U.S. 706, 730, 116 S.Ct. 1712, 135 L.Ed.2d 1
(1996). If the plaintiff is ultimately convicted, and if the stayed civil suit
would impugn that conviction, Heck will require dismissal; otherwise, the
civil action will proceed, absent some other bar to suit. Edwards v. Balisok,
520 U.S. 641, 649, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997); Heck, 512
U.S., at 487, 114 S.Ct. 2364.
549 U.S. at 1098.
In accordance with Quackenbush and Wallace, the Court will retain Mr.
Ellsworth’s request for damages in conjunction with his § 1983 Fourth Amendment
claims based on the alleged unlawful search of his cell phone, and the alleged false
arrest and false imprisonment.1 The Complaint can also be construed liberally as
asserting a § 1983 malicious prosecution claim. See Wilkins v. DeReyes, 528 F.3d 790,
798 (10th Cir. 2008) (noting that challenge to probable cause determination in a
preliminary hearing asserts an alleged Fourth violation sufficient to support a § 1983
malicious prosecution cause of action). However, the malicious prosecution claim is
premature because the criminal proceeding has not terminated in Plaintiff’s favor. See
Heck, 512 U.S. at 489; Myers v. Koopman, 738 F.2d 1190, 1194 (10th Cir. 2013).
Accordingly, it is
ORDERED that the § 1983 claims for equitable relief are DISMISSED WITHOUT
PREJUDICE, pursuant to the doctrine of Younger v. Harris. It is
FURTHER ORDERED that the § 1983 malicious prosecution claim is
DISMISSED WITHOUT PREJUDICE as premature. It is
FURTHER ORDERED that the remainder of this action (consisting of Plaintiff’s
§ 1983 claims for damages based on an unlawful search of his cell phone, false arrest,
and false imprisonment) is ADMINISTRATIVELY CLOSED, subject to reopening for
good cause after resolution of the underlying state court proceedings. See Callies v.
Lane, No. 13-cv-00484-CMA-KLM, 2013 WL 6670283 (D. Colo. Dec. 18, 2013).
The unlawful search claim accrued at the time it occurred, in August 2014. See Glaser v. City
and County of Denver, No. 13-1165, 557 F. App’x 689, 699 (10th Cir. Jan. 29, 2014) (unpublished); see
also Beck v. City of Muskogee Police Dep’t, 195 F.3d 553, 558 (10th Cir. 1999) (stating that claims arising
out of a search and seizure accrue when the actions occur). To the extent Plaintiff asserts claims of false
arrest and false imprisonment, those claims accrued at the time of the probable cause determination,
when he was bound over for trial. See Wallace, 549 U.S. at 390 (“If there is a false arrest claim, damages
for that claim cover the time of detention up until issuance of process or arraignment, but not more); id. at
389 (“[Because] false imprisonment consists of detention without legal process, a false imprisonment
ends once the victim becomes held pursuant to such process—when, for example, he is bound over by a
magistrate or arraigned on charges).
DATED December 23, 2014, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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