Saxton et al v. Lucas et al

Filing 83

ORDER Adopting October 27, 2015 and November 23, 2015 Report and Recommendations of United States Magistrate Judge, and that this case is DISMISSED in its entirety, by Judge Christine M. Arguello on 2/26/2016.(vbarn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 15-cv-00255-CMA-MJW
LAURA SAXTON and
DOUG SCHELLING, as the surviving parents of Kelsie Schelling, decedent,
Plaintiff,
v.
DONTHE LUCAS,
SARA LUCAS,
VIVIAN LUCAS,
DAWN SHAY LUCAS,
DETECTIVE NEAL ROBINSON, in his individual capacity,
SERGEANT KEN ESPINOZA, in his individual capacity,
DEPUTY POLICE CHIEF ANDREW McLACHLAN, in his individual capacity, and
CITY OF PUEBLO, COLORADO,
Defendants.

ORDER ADOPTING OCTOBER 27, 2015 AND NOVEMBER 23, 2015
RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the October 27, 2015 and November 23, 2015
Recommendations issued by United States Magistrate Judge Michael J. Watanabe.
(Docs. ## 65 and 70.)
I. BACKGROUND
A. Plaintiffs’ Complaint
Plaintiffs’ daughter Kelsie Schelling has been missing for over two years; it
appears that she was murdered the night she disappeared, but the police have never

charged anyone for the crime. Plaintiffs’ Amended Complaint brings allegations against
two separate groups of Defendants. In Claim One, Plaintiffs sue the alleged murderer,
Donthe Lucas, and his family/accomplices, Sara Lucas, Vivian Lucas, and Dawn Shay
Lucas (the Lucas Defendants), under Colorado state law, alleging wrongful death.
(Doc. # 8 at 24–25.) In Claims Two and Three, Plaintiffs sue the City of Pueblo,
investigating police officer Neal Robinson, and officer Robinson’s supervisors, Sergeant
Ken Espinoza and Deputy Police Chief Andrew McLachlan (the Pueblo Defendants),
under 42 U.S.C. § 1983 (Section 1983) and Monell v. Department of Social Services of
City of New York, 436 U.S. 658 (1978), alleging that their conduct (specifically,
destroying evidence and incompetently investigating the case) violates Plaintiffs’
constitutional right to access the courts by damaging Plaintiffs’ wrongful-death claim in
Claim One. (Id. at 25–27.) Finally, in Claim Four, Plaintiffs sue both the Lucas
Defendants and the Pueblo Defendants under 42 U.S.C. § 1985 (Section 1985),
alleging a conspiracy to violate Plaintiffs’ constitutional right to access the courts. (Id. at
27–28.)
B. Procedural History
This Court referred a variety of Motions to Dismiss, filed by both the Pueblo
Defendants and the Lucas Defendants, to Magistrate Judge Watanabe. (Docs. ## 52,
66.) On October 27, 2015 and November 23, 2015, Judge Watanabe issued
Recommendations to the Court regarding these motions. (Docs. ## 65, 70.)
Judge Watanabe’s October 27, 2015 Recommendation suggested that the
Motion to Dismiss brought by the Pueblo Defendants (Doc. # 38), be granted in part and

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denied in part. (Doc. # 65.) Specifically, Magistrate Judge Watanabe recommended
granting the Pueblo Defendants’ Motion as to (1) qualified immunity for Defendants
Robinson, Espinoza, and McLachlan, on Plaintiffs’ Section 1983 claim; (2) lack of
personal participation by Defendants Espinoza and McLachlan, on Plaintiffs’ Section
1983 claim; and (3) lack of municipal liability for Defendant City of Pueblo pursuant to
Monell, 436 U.S. at 694–95. Accordingly, he recommended that the Court dismiss
Claims Two, Three and Four of the Complaint in their entirety, as against the Pueblo
Defendants. (Id. at 17.)
Judge Watanabe’s November 23, 2015 Recommendation dealt with the other
Motions to Dismiss in this matter (Doc. ## 60, 62–64), filed by the Lucas Defendants.
(Doc. # 70.) Specifically, Judge Watanabe recommended that the Lucas Defendants’
Motions to Dismiss be granted as to Claim Four (alleging a conspiracy to violate
Plaintiffs’ constitutional rights to access the courts under Section 1985), but denied as to
Claim One (wrongful death). (Doc. # 70 at 4.)
Additionally, in his October 27, 2015 Recommendation, Judge Watanabe noted
that the Court would no longer have independent subject matter jurisdiction over Claim
One pursuant to 28 U.S.C. § 1331 (providing for federal-question jurisdiction) or 28
U.S.C. § 1332 (providing for diversity jurisdiction), if the Court accepted his
recommendations regarding the dismissal of the Pueblo Defendants. (Doc. # 65 at 17.)
Both of Judge Watanabe’s Recommendations are incorporated herein by
reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). Plaintiffs filed
Objections to both Recommendations on December 11, 2015 (Doc. # 73), to which the

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Pueblo Defendants responded on December 28, 2015. (Doc. # 75.) The Lucas
Defendants did not file a response to Plaintiffs’ Objections.
II. ANALYSIS
A. Legal Standard
When a magistrate judge issues a recommendation on a dispositive matter, the
district judge must “determine de novo any part of the magistrate judge’s
[recommended] disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3). An objection is “properly” made if it is both timely and specific. United States
v. One Parcel of Real Property Known As 2121 East 30th Street, 73 F.3d 1057, 1059
(10th Cir. 1996). In conducting his or her review, “[t]he district judge may accept, reject,
or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
The Court will address each of Magistrate Judge Watanabe’s Recommendations
in turn below.
B. The Pueblo Defendants’ Motion to Dismiss and Judge Watanabe’s October
27, 2015 Recommendation
The factual background of this case was discussed in detail in Judge Watanabe’s
Recommendation and will not be reiterated herein. Nevertheless, some background
principles regarding qualified immunity are necessary to address Plaintiffs’ Objections to
Judge Watanabe’s October 27, 2015 Recommendation.
The doctrine of qualified immunity protects government officials from liability for
civil damages if “‘their conduct does not violate clearly established . . . constitutional
rights of which a reasonable officer would have known.’” Pearson v. Callahan, 555 U.S.
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223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In contrast to
a motion for summary judgment, which places the burden on the moving party to point
out the lack of any genuine issue of material fact for trial, a motion to dismiss based on
a claim of qualified immunity imposes the burden on the plaintiff to show “both that a
constitutional violation occurred and that the constitutional right was clearly established
at the time of the alleged violation.” Green v. Post, 574 F.3d 1294, 1300 (10th Cir.
2009) (internal quotations omitted, emphasis added). “Ordinarily, in order for the law to
be clearly established, there must be a Supreme Court or Tenth Circuit decision on
point, or the clearly established weight of authority from other courts must have found
the law to be as the plaintiff maintains.” Klen v. City of Loveland, Colo., 661 F.3d 498,
511 (10th Cir. 2011) (quoting Zia Trust Co. ex rel. Causey v. Montoya, 597 F.3d 1150,
1155 (10th Cir. 2010)). Nevertheless, the overarching inquiry is “whether the law put
officials on fair notice that the described conduct was unconstitutional,” Clark v. Wilson,
625 F.3d 686, 6990 (10th Cir. 2010), and this inquiry “must be undertaken in light of the
specific context of the case, not as a broad general proposition,” Saucier v. Katz, 533
U.S. 194, 201 (2001).
Plaintiffs allege that the Pueblo Defendants’ incompetent investigation into the
disappearance of Kelsie Schelling, including the Defendants’ alleged destruction of
evidence and their failure to pursue investigative leads, violated Plaintiffs’ constitutional
right to access the courts by damaging their wrongful death claim. Magistrate Judge
Watanabe correctly determined – and Plaintiffs do not contest his determination – that
Plaintiffs brought a so-called “backward-looking” access to courts claim, because they

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allege that “their suit[] ended poorly or [was] ultimately precluded because of a state
actor’s past misconduct.” 1 See Walker v. Hickenlooper, No. 14-1462, --- Fed. App’x.
---, 2015 WL 5847486, at *6-7 (10th Cir. Oct. 8, 2015) (emphasis added).
In the instant case, Magistrate Judge Watanabe concluded, after much thoughtful
analysis, that Plaintiffs’ claims against the Pueblo Defendants were barred by qualified
immunity. Specifically, Judge Watanabe determined that the law regarding backwardlooking access to court claims was not “clearly established” as of the date of Plaintiff’s
alleged injuries (which occurred in approximately February of 2013). 2 In doing so,
Judge Watanabe relied on Lynch v. Barrett, 703 F.3d 1153, 1162 (10th Cir. 2013), a
case in which the Tenth Circuit specifically held that “[a]t least in the Tenth Circuit, the
question of whether an evidentiary cover-up by police officials may violate an
individual’s constitutional right to court access was not clearly established at the time of
the alleged violation [i.e., March of 2008.]” 703 F.3d at 1162. Next, Judge Watanabe
meticulously canvassed the case law in the Tenth Circuit and noted that he did not find
any cases since March of 2008 (i.e., any cases decided after March of 2008 but before
Plaintiff’s alleged injury here, in approximately February of 2013), that would change

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In contrast, a “forward looking” access to courts claim is one in which plaintiffs “seek to remove
obstacles that prevent litigation [at the present time],” such as suits by prisoners claiming that
the denial of law library privileges effectively prevents them from filing claims of alleged prison
abuse. See Walker v. Hickenlooper, No. 14-1462, --- Fed. App’x. ---, 2015 WL 5847486, at *6-7
(10th Cir. Oct. 8, 2015).
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Plaintiffs’ Objection to Judge Watanabe’s Recommendation asserts that the law was clearly
established “when the Pueblo Police Department Defendants engaged in the conduct at issue in
this case, February of 2015 and afterward.” (Doc. # 73 at 4) (emphasis added). The Court
concludes that this date must be a typographical error, as the Complaint alleges that
Defendants engaged in misconduct almost immediately after Kelsie Shelling disappeared in
February of 2013.
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this outcome; indeed, “[t]o the contrary, the Tenth Circuit insists on repeatedly assuming
that backward-looking claims are cognizable without actually deciding so – resolving
cases on other grounds and preventing the law from ever becoming clearly
established.” (Doc. # 65 at 7.) He also cogently and carefully discussed whether Lynch
and other cases were sufficiently factually analogous to the instant case to control the
qualified immunity outcome, including analyzing the fact that Plaintiffs’ claims involved
the alleged destruction of evidence and the deliberate refusal to develop evidence,
whereas Lynch’s facts involved only a “conspiracy of silence” and a refusal to disclose
evidence (and Lynch itself relied upon cases involving the negligent, rather than the
intentional, destruction of evidence). (See Doc. # 65 at 8–9.) Judge Watanabe
ultimately concluded that this was a distinction without a difference, because
the cases from the remaining circuits suggest that distinguishing Lynch in
this way gets the contours of the claim wrong. Of the Circuits that have
weighed in on such claims . . . none draw a distinction between destroying
evidence and hiding it. The Seventh Circuit has the best developed line of
cases, and it draws a distinction based on the degree of damage to
plaintiffs’ underlying claim rather than the nature of defendants’
misconduct.
(Doc. # 65 at 10.)
Plaintiffs’ sole argument regarding Judge Watanabe’s qualified immunity
determination is, at bottom, an assertion that he got the law wrong. Specifically,
Plaintiffs claim that the law regarding backward-looking claims was “clearly establish
[sic] in January of 2013 by the Tenth Circuit’s Lynch case” (Doc. # 73 at 3)
(emphasis added), and that Magistrate Judge Watanabe essentially misread Lynch’s
holding. Specifically, Plaintiffs’ Objections cite Lynch’s introductory language that “[a]

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backwards looking access claim may arise where a plaintiff alleges an underlying claim
cannot be tried, or be tried with all the evidence, because official conduct caused the
loss or inadequate resolution of that claim.” (Doc. # 73 at 3) (quoting Lynch, 703 F.3d at
1157, emphasis in original). Of course, this quoted language does not contradict the
Tenth’s Circuit’s actual holding that a constitutional right to court access was not “clearly
established,” and an examination of the Lynch decision and Magistrate Judge
Watanabe’s Recommendation confirms that he correctly determined (and applied)
Lynch’s holding. See Lynch, 703 F.3d at 1162-63 (10th Cir. 2013) (emphasis added)
(“At least in the Tenth Circuit, the question of whether an evidentiary cover-up by
police officials may violate an individual’s constitutional right to court access was not
clearly established at the time of the alleged violation [in March of 2008]. A
reasonable officer might not have understood what Defendant Officers did (or refused to
do) violated that right.”) It is also clear that Judge Watanabe’s statement about the
Tenth Circuit’s “repeatedly assuming that backward-looking claims are cognizable
without actually deciding so” (Doc. # 65 at 7), was based on his canvassing of other
cases – not, as Plaintiffs assert, on the Tenth Circuit’s language in Lynch about how it
was required to “assume” the constitutional violation occurred given the procedural
posture of the case. (See Doc. # 73 at 4.) As such, the Court has confirmed that Judge
Watanabe correctly determined that Plaintiff’s claims against the individual Pueblo
Defendants are precluded by virtue of qualified immunity, and Plaintiffs are incorrect in
their reading of Lynch’s holding. Accordingly, Plaintiff’s claims against the Pueblo
Defendants fail as a matter of law.

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Judge Watanabe also recommended that the claims against Defendants
Espinoza and McLachlan be dismissed because Plaintiffs failed to allege that they
personally participated in the alleged constitutional violations. (Doc. # 65 at 14.)
Specifically, he noted that Defendants Espinoza and McLachlan
appear only in four paragraphs of the Amended Complaint and Jury
Demand. At no point do those paragraphs allege any unlawful conduct;
they allege nothing more than that Defendant McLachlan participated in
public announcements related to the investigation and that Defendant
Espinoza accompanied Defendant Robinson on one trip to the suspect’s
home. Even in light of the remaining allegations, this does not plausibly
allege personal participation in or exercise of control or direction by
Defendants Espinoza and McLachlan.
(Id. at 15). Plaintiffs’ arguments that this conclusion was erroneous amount to little
more than a recitation and characterization of the same facts and arguments that were
before Judge Watanabe in Plaintiffs’ response to the Motion to Dismiss (see Doc. # 54
at 15–16); accordingly, these arguments do not constitute a proper objection. In any
case, the Court has carefully reviewed Plaintiffs’ arguments about how their allegations
meet the standard for personal participation, and determined that none of Plaintiffs’
allegations plausibly show that either Defendant Espinoza or Defendant McLachlan
personally participated in the alleged constitutional violations at issue. Therefore,
although the Court’s qualified immunity determination results in dismissal of the claims
against all three of the individual Pueblo Defendants, in the alternative, the Court affirms
Judge Watanabe’s Recommendation that the claims against Defendants Espinoza and
McLachlan be dismissed for failure to demonstrate personal participation.
Additionally, although Plaintiffs do not specifically contest this issue, given
Plaintiffs’ failure to allege personal participation by Defendant McLachlan (the purported
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policy maker for the City), Plaintiffs have also failed – by definition – to allege a
plausible theory of Monell liability against the City of Pueblo.
Finally, Judge Watanabe determined that there were no allegations from which it
could be inferred that the Pueblo Defendants conspired with the Lucas Defendants to
deprive Plaintiffs of a meaningful opportunity to sue for wrongful death. Plaintiffs do not
properly object to this conclusion, asserting only (as they did before Judge Watanabe)
that the “broader factual context” supports their argument that a conspiracy can be
inferred from their allegation that Detective Robinson and Sergeant Espinoza traveled to
the residence of Donthe and Sara Lucas to advise them that a press conference was
being held regarding Kelsie Schelling and that Donthe needed to defend himself to the
media and family. (See Doc. # 54 at 15) (“Sergeant Espinoza and Detective Robinson’s
visit to the Lucas residence is particularly relevant for the allegation that there is a
shared conspiratorial objective. The police officers visited the putative suspects and
likely defendants in a Wrongful Death case in order to inform them about and assist
them in preparing a defense to the Plaintiffs’ contentions that the Lucases were
responsible for Kelsie Schelling’s disappearance and death.”).
In any event, the Court agrees that this single meeting does not plausibly
suggest that there was a conspiracy between the Lucas Defendants and the Pueblo
Defendants under 42 U.S.C. § 1985. See Durre v. Dempsey, 869 F.2d 543, 545 (10th
Cir. 1989) (“Because plaintiff failed to allege specific facts showing agreement and
concerted action among defendants, the district court properly dismissed the conspiracy
claim with prejudice.”); see also Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008)

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(plausibility “refer[s] to the scope of the allegations in a complaint: if they are so general
that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs
‘have not nudged their claims across the line from conceivable to plausible.’” (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))). Plaintiffs also do not object to
Judge Watanabe’s conclusion that, given the failure to allege personal participation by
Defendants Espinoza and McLachlan, that Plaintiffs’ conspiracy claim against those
Defendants also fails as a matter of law.
For the foregoing reasons, the Court concludes, after conducting its de novo
review, that Judge Watanabe did not err in recommending that Claims Two, Three, and
Four of Plaintiffs’ Amended Complaint be dismissed with prejudice against the Pueblo
Defendants.
C. The Lucas Defendants’ Motions to Dismiss And Judge Watanabe’s
November 23, 2015 Recommendation
As discussed above, Claim Four of the Amended Complaint alleged that the
Lucas Defendants conspired with the Pueblo Defendants to destroy, conceal, or fail to
develop evidence that would be relevant to Plaintiffs’ wrongful death claim in violation of
Plaintiffs’ constitutional right to access the courts. Judge Watanabe’s November 23,
2015 Recommendation determined that the Amended Complaint alleged no factual
content from which it could plausibly be inferred that the Lucas Defendants had any
involvement with the alleged acts or omissions of the Pueblo Defendants. (Doc. # 70 at
3.) In their Objection, Plaintiffs merely reiterate their argument that Defendant
Espinoza’s meeting with Defendant Robinson at the Lucas home indicates that there
was a conspiracy in violation of 42 U.S.C § 1985. (Doc. # 73 at 8.) The Court has
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already rejected this argument in its foregoing analysis; accordingly, it agrees that Claim
Four of the Amended Complaint should also be dismissed with prejudice against the
Lucas Defendants.
Additionally, Judge Watanabe’s November 23, 2015 Recommendation
determined that Plaintiffs’ Amended Complaint alleged sufficient facts to support Claim
One, that is, Plaintiffs’ Wrongful Death claim against the Lucas Defendants, brought
under Colorado state law. (Doc. # 70 at 4.) The Court agrees with this determination.
However, having dismissed all of plaintiff’s claims arising under federal law, the Court
must now decide whether it should exercise supplemental jurisdiction over Claim One.
Although courts may exercise supplemental jurisdiction over state law claims if there is
otherwise a jurisdictional basis for doing so, 28 U.S.C. § 1367(c)(3) provides: “[t]he
district court[] may decline to exercise supplemental jurisdiction over a claim . . . if . . .
the district court has dismissed all claims over which it has original jurisdiction.” The
Tenth Circuit reviews a district court’s decision not to exercise jurisdiction under 28
U.S.C. § 1367(c) (Section 1367(c)) for abuse of discretion. See Nielander v. Bd. of
Cnty. Comm’rs, 582 F.3d 1155, 1172 (10th Cir. 2009). When Section 1367(c) is
implicated in the Tenth Circuit, courts are advised to dismiss pendent state law claims
“‘absent compelling reasons to the contrary.’” Brooks v. Gaenzle, 614 F.3d 1213, 1230
(10th Cir. 2010) (internal quotation omitted); see also Koch v. City of Del City, 660 F.3d
1228, 1248 (10th Cir. 2011) (emphasis added, internal quotation omitted) (“When all
federal claims have been dismissed, the court may, and usually should, decline to
exercise jurisdiction over any remaining state claims.”); Endris v. Sheridan Cnty. Police

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Dep’t, 415 Fed. App’x. 34, 36 (10th Cir. 2011) (unpublished) (“any state-law claims for
assault and battery or mental and emotional injury were inappropriate subjects for the
exercise of pendent jurisdiction where all federal claims had been dismissed”); Brooks
v. Gaenzle, 614 F.3d 1213, 1229 (10th Cir. 2010) (“[The Tenth Circuit has] generally
held that if federal claims are dismissed before trial, leaving only issues of state law, the
federal court should decline the exercise of jurisdiction by dismissing the case without
prejudice.”). The United States Supreme Court has also recognized that
Needless decisions of state law should be avoided both as a matter of
comity and to promote justice between the parties, by procuring for them a
surer-footed reading of applicable law. Certainly, if the federal claims are
dismissed before trial, even though not insubstantial in a jurisdictional
sense, the state claims should be dismissed as well.
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
Because Plaintiffs’ federal claims have been dismissed, and because the Court
sees no compelling reason to exercise pendent jurisdiction over Plaintiffs’ state law
claims, 3 the Court dismisses Claim One, but does so without prejudice.

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Although the statute of limitations for filing of a wrongful death action is two years from the
date of death, pursuant to Colo. Rev. Stat. §§ 13-80-102(1)(d) & 13-80-108(2), federal law
provides that “The period of limitations for any claim asserted under [§ 1367(a)] . . . shall be
tolled while the claim is pending and for a period of 30 days after it is dismissed.” 28 U.S.C. §
1367(d). This tolling provision provides “assurance that state-law claims asserted under §
1367(a) will not become time barred while pending in federal court.” Estate of Harshman v.
Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1168 n.4 (10th Cir. 2004) (internal
quotation omitted); see also Jinks v. Richland Cnty., 538 U.S. 456, 459 (2003) (“To prevent the
limitations period on . . . supplemental claims from expiring while the plaintiff was fruitlessly
pursuing them in federal court, § 1367(d) provides a tolling rule that must be applied by state
courts.”) Thus, if Plaintiffs wish to pursue their wrongful death claim against the Lucas
Defendants, they have 30 days from the dismissal of this case within which to file an action in
state court.
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III. CONCLUSION
The Court has conducted a full, de novo review of this matter, including
examining all relevant pleadings, the Recommendations, and Plaintiff’s Objection
thereto. Based on this de novo review, and for the foregoing reasons, the Court
concludes that Magistrate Judge Watanabe’s Recommendations are correct and are not
called into question by Plaintiff’s Objections. Accordingly, it is hereby ORDERED that
Plaintiffs’ Objections (Doc. # 73) are OVERRULED. It is
FURTHER ORDERED that the Recommendations of Magistrate Judge
Watanabe (Docs. ## 65 and 70) are AFFIRMED and ADOPTED as an Order of this
Court. Pursuant to those Recommendations, it is
FURTHER ORDERED that the Pueblo Defendants’ Motion to Dismiss (Doc.
# 38) is granted in part and denied in part. Specifically, Claims Two, Three, and Four
are DISMISSED WITH PREJUDICE as against the Pueblo Defendants. It is
FURTHER ORDERED that the Lucas Defendants’ Motions to Dismiss (Docs.
## 60, 62, 63, 64) are granted as to Claim Four against the Lucas Defendants, but
denied as to Claim One. Accordingly, Claim Four is DISMISSED WITH PREJUDICE
against the Lucas Defendants. It is
FURTHER ORDERED that because the Court will not exercise pendent
jurisdiction over Plaintiffs’ remaining state law claim, Claim One is hereby DISMISSED
WITHOUT PREJUDICE. It is

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FURTHER ORDERED that this case is hereby dismissed in its entirety.
DATED: February 26, 2016

BY THE COURT:

______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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