Law v. Morrissey, et al

Filing 9

ORDER to Dismiss in Part and to Show Cause in Part by Judge Lewis T. Babcock on 3/12/15. Defendants Mitchell R. Morrissey and Kerri Lombardi are dismissed, and the Plaintiff shall respond and show cause why Claim One as asserted against Defendant Kathy E. Lilly should not be dismissed as time-barred. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00223-GPG
DON LAW,
Plaintiff,
v.
MITCHELL R. MORRISSEY,
KERRI LOMBARDI, #23291, and
KATHY E. LILLY, #85-16,
Defendants.

ORDER TO DISMISS IN PART
AND TO SHOW CAUSE IN PART

I. Background
Plaintiff Don Law is in the custody of the Colorado Department of Corrections
and currently is incarcerated at the Bent County Correctional Facility in Las Animas,
Colorado. Plaintiff, a pro se litigant, initiated this action by filing a Notice of Intent.
Magistrate Judge Gordon P. Gallagher reviewed the Complaint, determined that the
filing was deficient, and entered an order on February 3, 2015, directing Plaintiff to file
his claims on a Court-approved form used in filing prisoner complaints. On March 2,
2015, Plaintiff complied with the February 3 Order. Plaintiff now has been granted leave
to proceed pursuant to 28 U.S.C. § 1915.
II. Claims
Plaintiff asserts six claims pursuant to 42 U.S.C. § 1983. The claims are as
follows:
Claim One-Defendant Kathy E. Lilly maliciously arrested Plaintiff on July 4,

2000, without a warrant or reasonable cause and in violation of Plaintiff’s
Fourth, Eighth, and Fourteenth Amendment rights;
Claim Two-Defendants Mitchell R. Morrissey and Kerri Lombardi, District
and Deputy District Attorneys, maliciously prosecuted Plaintiff when they
filed false charges against him on July 6, 2000, in violation of the Eighth
and Fourteenth Amendments;
Claim Three-A jury rendered a false verdict on January 17, 2001, without
a meaningful explanation of Plaintiff’s guilt and without supporting
evidence in violation of the Eighth and Fourteenth Amendments;
Claim Four-A jury maliciously and sadistically convicted him because
Plaintiff was convicted without a preponderance of the evidence in
violation of the Eighth and Fourteenth Amendments;
Claim Five-Judge Warren O. Martin maliciously and sadistically sentenced
Plaintiff to fifteen years to life in prison because Plaintiff was convicted
without a finding of preponderance of the evidence in violation of the
Eighth and Fourteenth Amendments; and
Claim Six-Defendants Kerri Lombardi and Mitchell R. Morrissey
maliciously and sadistically subjected Plaintiff to a malicious prosecution
without reasonable cause in violation of the Eighth and Fourteenth
Amendments.
Compl., ECF No. 7, at 3-6 and 9-12. Plaintiff seeks money damages, expungement of
the conviction, and release from prison.
III. Analysis
The Court must construe the Complaint liberally because Plaintiff 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). If the Complaint reasonably can be
read “to state a valid claim on which the plaintiff could prevail, [the Court] should do so
despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal
theories, his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements.” Hall, 935 F.2d at 1110. However, the Court does not act as an

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advocate for a pro se litigant. See id.

For the reasons stated below, the action will be

dismissed in part and Plaintiff will be ordered to show cause why the remaining claim
should not be dismissed as time-barred.
i. Heck
Plaintiff’s claims for damages are barred by the rule in Heck v. Humphrey, 512
U.S. 477 (1994). Pursuant to Heck, if a judgment for damages necessarily would imply
the invalidity of a criminal conviction or sentence, the action does not arise until the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by an authorized state tribunal, or called into question by the
issuance of a federal habeas writ. See Heck, 512 U.S. at 486-87.
It is apparent that Plaintiff has not invalidated the conviction and sentence at
issue and a judgment in Claims Two through Six would necessarily imply the invalidity
of Plaintiff’s criminal conviction or sentence. The Court, therefore, finds that Plaintiff’s
claims for damages challenging the validity of his state court conviction are barred by
the rule in Heck and must be dismissed. Claims Two through Six, therefore, will be
dismissed pursuant to Heck. Although these claims will be dismissed without prejudice,
see Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996), they will be dismissed
for failure to state a claim, see Hafed v. Fed. Bureau of Prisons, et al., 635 F.3d 1172
(10th Cir. 2010) (citing Davis v. Kan. Dep’t of Corr., 507 F.3d 1246, 1248-49 (10th Cir.
2007).
ii. Deficiencies
Plaintiff’s Complaint suffers from other deficiencies. First, Defendants Kerri
Lombardi, Deputy District Attorney, and Mitchell R. Morrissey, District Attorney, are

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entitled to absolute immunity in § 1983 suits for activities within the scope of their
prosecutorial duties. See Imbler v. Pachtman, 424 U.S. 409, 420-24 (1976); see also
Butz v. Economou, 438 U.S. 478, 504 (1978). The Tenth Circuit has found that state
prosecutors’ “decisions to prosecute, their investigatory or evidence–gathering actions,
their evaluation of evidence, their determination of whether probable cause exists, and
their determination of what information to show the court” are activities intimately
associated with the judicial process. See Nielander v. Bd. of County Comm’rs., 582
F.3d 1155, 1164 (10th Cir. 2009). Therefore, Defendants Morrissey and Lombardi will
be dismissed as inappropriate parties to this action based on absolute immunity.
To the extent that Plaintiff seeks injunctive and declaratory relief regarding the
validity of his conviction, or expungement of his conviction, his sole federal remedy is a
writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 504 (1973). Habeas
corpus claims may not be raised in a 42 U.S.C. § 1983 action. If Plaintiff wishes to
pursue any habeas corpus claims he must file a separate habeas corpus action. Before
seeking habeas corpus relief in federal court, Plaintiff, however, must exhaust state
court remedies. See Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000).
iii. Statute of Limitations
Finally, in Claim One, Plaintiff asserts that he was arrested without a warrant or
“reasonable cause,” ECF No. 4 at 19, which is properly asserted as a violation of
Plaintiff’s Fourth Amendment rights, or of his Fourteenth Amendment rights, and is not
necessarily barred by Heck. See Wilkins v. DeReyes, 528 F.3d 790, 798 (10th Cir.
2008). The statute of limitations for a Fourth Amendment claim, however, begins to run
when the false imprisonment ends or when imprisonment is subject to legal process,

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which is either at the time a victim is released or he is bound over by a magistrate or
arraigned on charges. See Mondragon v. Thompson, 519 F.3d 1078, 1082-83 (10th
Cir. 2008).
Plaintiff was arrested on July 4, 2000, and on July 6, 2000, was subjected to
charges being brought against him by the district attorney. Plaintiff, therefore, was
bound over on charges by July 6, 2000, and the time for the statute of limitations began
to run.
The limitation period for an action under 42 U.S.C. § 1983 is set by the personal
injury statute in the state where the cause of action accrues. Garcia v. Wilson, 731 F.2d
640, 650-51 (10th Cir. 1984). In Colorado, the limitations period for a personal injury
action is two years. Colo. Rev. Stat. § 13-80-102. Plaintiff filed this action on February
2, 2015, almost thirteen years after the two-year statute of limitations expired on July 6,
2002.
A court may “consider affirmative defenses sua sponte” for purposes of dismissal
under § 1915 “when the defense is obvious from the face of the complaint and no
further factual record is required to be developed.” Fractus v. Deland, 49 F.3d 673,
674-75 (10th Cir. 1995) (quoting Yellen v. Cooper, 828 F.2d 1471, 1476 (10th Cir. 1987)
(internal quotations omitted)). It is clear from the face of Plaintiff’s Complaint that the
cause of action accrued on July 6, 2002.
“[W]hen a federal statute [42 U.S.C. § 1983] is deemed to borrow a State’s
limitations period, the State’s tolling rules are ordinarily borrowed as well . . . .” See
Ehimeshoff v. Hartford Life & Accident Insurance Co., et al., — U.S. —, 134 S. Ct. 604,
616 (2013) (citing Board of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478,

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484 (1980) (in § 1983 actions “a state statute of limitations and the coordinate tolling
rules” are “binding rules of law”). The State of Colorado recognizes the doctrine of
equitable tolling, which applies “when flexibility is required to accomplish the goals of
justice.” Morrison v. Goff, 91 P.3d 1050, 1053 (Colo. 2004) (quotations omitted).
Plaintiff does not allege that equitable tolling applies. And, “[w]hile the statute of
limitations is an affirmative defense, when the dates given in the complaint make clear
that the right sued upon has been extinguished, the plaintiff has the burden of
establishing a factual basis for tolling the statute.” Aldrich v. McCulloch Properties, Inc.,
627 F.2d 1036, 1041 n. 4 (10th Cir. 1980). Also, equitable tolling applies only when
“plaintiffs did not timely file their claims because of ‘extraordinary circumstances' or
because defendants’ wrongful conduct prevented them from doing so.” Morrison, 91
P.3d at 1053. Nothing in the Complaint suggests any extraordinary circumstances that
prevented Plaintiff from timely filing his § 1983 action.
IV. Conclusion
The Court will direct Plaintiff to respond and show cause why Claim One should
not be dismissed as time-barred because more than two years have passed since the
cause of action accrued. Accordingly, it is
ORDERED that Claims Two through Six are barred and dismissed without
prejudice pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). See Fottler v. United
States, 73 F.3d 1064, 1065 (10th Cir. 1996). It is
FURTHER ORDERED that Defendants Mitchell R. Morrissey and Kerri Lombardi
are dismissed as improperly named parties to this action. It is
FURTHER ORDERED that Plaintiff shall respond and show cause why Claim

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One as asserted against Defendant Kathy E. Lilly should not be dismissed as
time-barred. It is
FURTHER ORDERED that if Plaintiff fails to respond within thirty days Claim
One will be dismissed as time-barred.
DATED at Denver, Colorado, this

12th

day of

March

, 2015.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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