Raguindin et al v. Yates et al

Filing 82

ORDER Adopting and Affirming in Part 74 February 29, 2016 Recommendation of United States Magistrate Judge as indicated in the attached Order. 32 and 44 Motions to Dismiss are GRANTED in part and DENIED in part as indicated in the attached Order. 78 Motion for Joinder is GRANTED. The parties are to contact Judge Mix's chambers to arrange for a hearing regarding the timeliness of Plaintiffs' notice under the CGIA. By Judge Christine M. Arguello on 03/31/2016. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 15-cv-00635-CMA-KLM
JOEL RAGUINDIN, and
JENNA FOX,
Plaintiffs,
v.
MICHAEL YATES, individually,
JASON PHIPPS, individually,
MIKE PARKOS, individually,
PATRICK HAUGSE, individually,
CHIEF OF POLICE RICK BRANDT, in his official capacity,
WELD COUNTY SHERIFF STEVEN REAMS, individually and in his official capacity,
and
PAUL WOOD, individually,
Defendants.

ORDER ADOPTING AND AFFIRMING IN PART FEBRUARY 29, 2016
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This case was referred to United States Magistrate Judge Kristen L. Mix pursuant
to 28 U.S.C. § 636 and Fed. R. Civ. P. 72. (Doc. # 10.) This matter is before the Court
on the February 29, 2016 Recommendation issued by Judge Mix regarding two Motions
to Dismiss (Doc. ## 32, 44) filed by Defendants in this matter. (Doc. # 74.)
I. BACKGROUND
The full factual background of this case was provided in Magistrate Judge Mix’s
thorough Recommendation, which is incorporated herein by reference; accordingly, this

background will not be reiterated in full here. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ.
P. 72(b). However, the Court will provide some factual background as necessary to
analyze Judge Mix’s Recommendation and Defendants’ Objections thereto.
On January 1, 2012, at her home in Evans, Colorado, Ashley Fallis died of a
gunshot wound to the head. Her death was pronounced a suicide by the Weld County
Coroners’ office on January 6, 2012. (Doc. # 22, ¶¶ 2, 5.) Plaintiffs allege that
Defendants, employees of the Evans Police Department and Weld County Sheriff’s
Department, destroyed, covered up, and falsified evidence indicating that she was
murdered by her husband, Tom Fallis, who was a Weld County Corrections Officer.
Specifically, they allege that:
Defendant Paul Wood, acting, on information and belief, at the instruction
of Sheriff Reams who was supervising, gave multiple orders at the scene
to Weld County deputies, including justice-obstructing orders not to write
reports regarding what they saw, heard or learned and when to leave
the residence.
A neighbor and witness, Nick Glover, was interviewed by Officer Yates
and told [Officer Yates] that he overheard Tom Fallis confess to his
parents that he murdered his wife . . . Nick Glover reportedly told
Defendant Yates that he distinctly heard him say, “I shot her.” More
specifically, during his interview with Officer Yates, shared, on information
and belief, with the other individual defendants, Mr. Glover reported that
he heard the following incriminating exchange immediately after the
shooting between Mr. Fallis and his parents that Officer Yates is believed
to have written down:
• Mr. Fallis: “Oh my God, I can’t believe I did it. Oh my God, what have
I done. What have I done.”
• Mr. Fallis’ parents: “What. What are you saying.”
• Mr. Fallis: “I shot her.”
Outrageously, Officer Yates and/or other involved Defendants or Evans
police officers consciously decided to not include this highly
incriminating confession witnessed by Mr. Glover or that a
confession by Tom Fallis was also heard by other officers in their
official reports.
2

Officer Yates, on information and belief, supported and/or supervised by
the other individual defendants, additionally altered/destroyed another
witness’s original reporting of the shooting, changing her report
from a highly incriminating account into a manufactured suicide
account. Mr. Glover’s mother, Kathy Glover, reported to Officer Yates
that she received a phone call from neighbor Chelsea Arrigo immediately
after the shooting. She reported that Ms. Arrigo told her: “Call police,
your neighbor just shot his wife.” (Emphasis supplied). Officer Yates,
on information and belief, with the knowledge or support of the other
individual defendants, however, deliberately altered and/ or destroyed this
phone conversation in his official report, falsely characterizing Ms. Arrigo’s
original statement to Ms. Glover as: “[P]lease tell me you called the
cops . . . your neighbor just shot herself.” (Emphasis added.) 1
Upon learning that their accounts had been altered, Nick Glover and Kathy
Glover reportedly prepared sworn affidavits describing their original accounts to
the police, and have also stated that they were shocked to learn of the omissions
and misstatements in the police reports that were prepared. When confronted
about his conduct as described by these witnesses, Defendant Yates reportedly
did not deny the claims and referred the reporter to Chief Brandt.
Weld County Deputy Sheriff, Chris Graves, was “instructed” by Evans police to
watch Tom Fallis at the scene. While doing so, Deputy Graves heard Tom
Fallis confess to killing his wife. Several law enforcement officers were also
then present in a position to hear Tom Fallis so state and confess.
On information and belief, the Evans Police Department related Defendants
or some of them and/or other Evans police officers also heard and/or were
otherwise aware of this confession by Tom Fallis but, as afore alleged, did
not include it in any of their reports or arrest and charge Tom Fallis.

1

Although Judge Mix did not mention the following allegations, the Court finds them worth
noting:
“The named individual Defendants chose to ignore a number of other critical
incriminating observations that neighbor Arrigo made to investigating officers, including
that Ms. Arrigo heard Ms. Fallis being assaulted by Tom Fallis . . . [Arrigo also] told
Greeley Police Department Sergeant Turk and Evans Police Department Officer
Croissant that she overheard the shooting.” (Doc. # 9, ¶¶ 81-83, 85.)
“To the express knowledge of all Defendants, Ashley Fallis’ then-six year old daughter,
reported about her own father, Tom Fallis: ‘I saw my Daddy get the gun ready and shoot
mommy 3 times’, but this eye-witness statement was completely and utterly disregarded
by these Defendants in charge of this investigation.” (Id., ¶ 90.)
3

Defendant Commander Wood, acting, on information and belief, at the
instruction of Defendant Sheriff Reams, told multiple deputies responding to the
scene, including Chris Graves and Andrea Rusch directly and/or in response
to inquiries, that they were not to write reports concerning this matter.
Recently to further divert from his own liability, Defendant Reams has falsely
stated that the explanation for no reports was not these outrageous command
instructions but rather resides “in the power of laziness” by the former deputy.
On information and belief, Defendant Wood and Defendant Reams, in taking
these and related actions together with the Evans police Defendants, were
consciously aware that Deputy Graves and/or other Weld County and
Evans officers had also overhead Tom Fallis confess to murdering Ashley
Fallis.
(Doc. # 74 at 5–6) (citing Doc. # 22, ¶¶ 76, 80–89, 91–97.)
Many of Plaintiffs’ allegations are derived from an investigation conducted by Fox
31 Denver Reporter Justin Joseph, who “spent over a year combing through records
and finding witnesses to [Ms. Fallis’] death.” (Doc. # 22, ¶ 153.) Shortly after Mr.
Joseph’s news report regarding the investigation aired in April of 2014, the Evans Police
Department re-opened the case. (Id., ¶¶ 157.) After a new, independent investigation
was conducted by the Fort Collins Police Department, Mr. Fallis was indicted by a grand
jury for the murder of Ms. Fallis in November of 2014, and that case is ongoing. (Id., ¶¶
157, 159.) Additionally, the Weld County Pathologist, Dr. Wilkerson, has since retracted
his determination that Ms. Fallis’ cause of death was a suicide, reportedly stating in a
letter that: “Physical altercation preceded death. Other factors in new investigation do
not unequivocally support suicide as a manner of death. Homicide is also a
consideration.” (Id., ¶ 158.)

4

Plaintiffs, Joel Raguindin and Jenna Fox, the father and mother of Ashley Fallis,
sued Evans Police Department employees2 (“the Evans Defendants”), and Weld County
employees 3 (“the Weld Defendants”) who were involved in the investigation of Ms.
Fallis’ death, alleging (1) denial of due process pursuant to 42 U.S.C. § 1983, alleging
that law enforcement’s conduct in destroying, covering up, and falsifying evidence
blocked Plaintiffs’ access to courts, 4 and also, that Evans’ Chief of Police failed to train
his officers properly; (2) denial of due process pursuant to 42 U.S.C. § 1983, alleging a
deprivation of liberty interests arising from the stigma of Ms. Fallis’ suicide designation
(otherwise known as a “stigma plus” claim); and (3) a state law tort claim of willful and
wanton outrageous conduct (otherwise known as intentional infliction of emotional
distress). (Id.)
Magistrate Judge Mix recommended that the Court grant the Evans Defendants’
and the Weld Defendants’ Motions to Dismiss with respect to Plaintiffs’ so-called
“stigma plus” claim, 5 but recommended that the Motions be denied in all other respects.
Specifically, she concluded that (1) Plaintiffs sufficiently stated a due process claim

2

Plaintiffs sued Evans Police Officer Michael Yates, Sergeant Jason Phipps, Commander Mike
Parkos, and Commander Patrick Haugse in their individual capacities, and Chief of Police Rick
Brandt in his official capacity.

3

Plaintiffs sued Weld County Sheriff Steven Reams in both his individual and official capacities,
and Commander Paul Wood in his individual capacity.
4

Specifically, Plaintiffs brought a “backwards-looking” access to courts claim, which alleges that
a plaintiffs’ “suit[] ended poorly or [was] ultimately precluded because of a state actor’s past
misconduct.” See Walker v. Hickenlooper, No. 14-1462, -- Fed. App’x. --, 2015 WL 5847486,
at *6-7 (10th Cir. Oct. 8, 2015).

5

Plaintiffs did not object to Judge Mix’s determination on their “stigma plus” claim. (See Doc. #
81.)
5

pursuant to 42 U.S.C. § 1983 for denial of access to the Courts, and that this claim was
not barred by Defendants’ qualified immunity as law enforcement officers; and (2)
Plaintiffs sufficiently stated an outrageous conduct claim. (Doc. # 74.) Thereafter,
Defendants filed a timely Objection to Magistrate Judge Mix’s Recommendation (Doc.
# 77), and Plaintiffs filed a timely Response (Doc. # 81).
II. ANALYSIS
A. Legal Standard
When a magistrate judge issues a recommendation on a dispositive matter,
Fed. R. Civ. P. 72(b)(3) requires that the district judge “determine de novo any part
of the magistrate judge’s [recommended] disposition that has been properly objected
to.” In conducting its 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.” Id.
B. Application
1. Whether Defendants Were Entitled to Qualified Immunity
Defendants’ first objection to Magistrate Judge Mix’s determination is their
argument that “nothing that Defendants have allegedly done has prevented Plaintiffs
from accessing [the] courts,” and, as such, that Plaintiffs cannot state a claim for the
unconstitutional denial of access to the courts, because such a claim requires “the
complaint [to] identify a remedy that may be awarded as recompense but not otherwise
available in some suit that may yet be brought.” (Doc. # 77 at 7) (quoting Christopher v.
Hardbury, 536 U.S. 403, 414 (2002)). However, the Court agrees with Judge Mix’s
6

conclusion on this score – that “if the Court determines that even one . . . avenue[] [for
court access] has been foreclosed as a result of Defendants’ alleged actions, that is
sufficient for purposes of the Court’s analysis of the Motions” – and also with her
determination that “[t]here can be no question that the designation of Ashley Fallis’
death as a suicide prevented Plaintiffs from asserting rights under Colo. Rev. Stat. §
15-11-803 (governing the effect of homicide on intestate succession, wills, trusts, joint
assets, life insurance, and beneficiary designations) and Colo. Rev. Stat. § 15-21-203
(governing the priority among persons seeking appointment as personal
representative).” (Doc. # 74 at 19.)
Defendants’ second objection to Judge Mix’s qualified immunity determination is
somewhat thornier, and it primarily revolves around whether she correctly determined
the law was “clearly established” that the deliberate destruction and falsification of
evidence by state actors violates an individual’s right of court access. By way of
background, 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.
223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The test is
one of objective reasonableness, in light of the law at the time of the alleged violation.
Jantz v. Muci, 976 F.2d 623, 627 (10th Cir. 1992). 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

7

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).
Judge Mix began her discussion of Defendants’ qualified immunity arguments by
examining an unpublished Tenth Circuit decision, Stump v. Gates, 986 F.2d 1429 (table
decision) (10th Cir. 1993). In that case, the decedent was found dead in his home and
his death was reported a suicide. After allegations of impropriety prompted a grand jury
investigation, the decedent’s children filed a civil lawsuit against the chief of police and a
police detective, against whom they made very similar allegations to those involved in
the instant case (though, notably, the conduct alleged in Stump was not as egregious). 6

6

In Stump, these allegations included the following: (1) the Arapahoe County Coroner was
initially barred from entering the decedent’s home; (2) no autopsy was ordered or performed; (3)
ballistics tests were not ordered or performed; (4) [decedent’s wife] was not interviewed by the
police until May 28, 1984, eight days after her husband's death; (5) [decedent’s] hands were not
bagged to preserve evidence for a trace metal detection test (TMDT); (6) the results of the
8

See Stump v. Gates, 777 F. Supp. 808, 813–14 (D. Colo. 1991). The Tenth Circuit
affirmed the District Court’s denial of qualified immunity and its determination that the
plaintiffs’ right of access to the courts under these circumstances was clearly
established at the time of the alleged improprieties, explaining:
In order for a right to have been clearly established, this court requires
“some, but not necessarily precise, factual correspondence” between
cases predating the alleged violation and the facts of the case in question.
Calhoun v. Gaines, No. 91-6152, 1992 WL 387385, at *4 (10th Cir. Dec.
30, 1992). “In essence, this standard requires officials to know well
developed legal principles and to relate and apply them to analogous
factual situations.” Id. The parties naturally characterize the qualified
immunity issue differently. We believe, however, that the appropriate
statement of that issue in the context of the allegations of this
complaint is whether a reasonable officer would have known at the
time of Ocrant’s death that a deliberate failure to investigate and
quick destruction of evidence that might have proved homicide was
a violation of the decedent's children’s right of access to the courts.
...
We emphasize that all that is before us are the allegations of the
complaint, alleging deliberate action and conspiracy, which we must take
as true. We believe that any reasonable officer would have known
that if the conduct occurred as alleged by plaintiffs in this case, it
would violate the constitutional rights of the decedent’s children.
Stump, 986 F.2d 1429, at *2 (emphasis added).
Judge Mix noted that Defendants argued that Stump’s holding should be
disregarded entirely because it is an unpublished opinion and also because it was not
cited in Lynch v. Barrett, 703 F.3d 1153, 1162 (10th Cir. 2013), a more recent Tenth
Circuit case involving a (somewhat similar) access-to-courts claim. Defendants make
TMDT performed on [decedent] were not compared to the weapon found in his hand; (7) no
TMDT or antimony testing was performed on [decedent’s wife]; (8) no fingerprint testing for
comparison to fingerprints other than [decedent’s] was performed; (9) at [decedent’s wife’s]
request, the two guns and other evidence seized from the Ocrant home were destroyed by the
Greenwood Village Police Department on June 1, 1984. 777 F. Supp. 808, 813–14 (D. Colo.
1991.)
9

this argument again in their Objection to Judge Mix’s Recommendation, and are correct
in noting that an unpublished decision cannot be relied upon in determining whether the
law was clearly established. Green v. Post, 574 F.3d 1294, 1310 n. 10 (10th Cir.
2009). 7 Nevertheless, Judge Mix also hypothesized that the Tenth Circuit’s failure to
cite Stump in Lynch was “likely because Lynch is distinguishable from both Stump and
the instant case.” (Doc. # 74 at 23.) She then carefully canvassed law from the other
circuit courts of appeals on this question, noting that the Fifth, Seventh, and Ninth
Circuits recognize a constitutional right of access to the courts based on the bad faith
destruction of evidence; 8 that the Eighth Circuit recognizes a denial or access to the
courts claim for the materially identical conduct of falsifying evidence; 9 and that the
Seventh Circuit, which has the best-developed line of cases, “draws a distinction based
on the degree of damage to the plaintiffs’ underlying claim rather than the nature of
7

In Green, the Tenth Circuit noted that the Fourth Circuit has given a particularly “cogent”
explanation as to why unpublished opinions should not be considered in determining whether
the law is clearly established:
Since unpublished opinions are not even regarded as binding precedent in our
circuit, such opinions cannot be considered in deciding whether particular
conduct violated clearly established law for purpose of adjudging entitlement to
qualified immunity. We could not allow liability to be imposed upon public
officials based upon unpublished opinions that we ourselves have determined will
be binding only upon the parties immediately before the court.
574 F.3d at 1310 n. 10 (quoting Hogan v. Carter, 85 F.3d 1113, 1118 (4th Cir.1996)). As
explained in greater detail below, these concerns are less of an issue here, in light of the Court’s
finding regarding the “obvious clarity” with which Defendants’ alleged misconduct violated
Plaintiffs’ constitutional rights.

8

Webster v. City of Houston, 735 F.2d 838, 846 (5th Cir. 1984); Bell v. City of Milwaukee, 746
F.2d 1205, 1260–66 (7th Cir. 1984); Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621,
625 (9th Cir. 1988).
9

S.L. ex rel. Lenderman v. St. Louis Metro. Police Dep’t Bd. of Police Comm’rs, 725 F.3d
843, 850–54 (8th Cir. 2013).
10

defendant’s misconduct.” (Id. at 24.) Ultimately, she determined that, “Stump, in
addition to the various cases from other circuits as applied to the factual allegations
in this case, are enough for the Court to find that Defendants were on notice that their
alleged actions would violate Plaintiffs’ constitutional rights.” (Id. at 25) (emphasis
added). Although Defendants characterize the cases on which Judge Mix relied as
“distinguishable and unpersuasive,” the Court has reviewed each of them, and agrees
that, overall, Judge Mix correctly concluded that the general weight of authority in
several other circuits is that the law is well-established that the bad faith destruction
and/or falsification of evidence violates an individual’s constitutional right to access
the courts.
The soundness of Judge Mix’s conclusion, then, is premised on her conclusion
that Lynch’s facts are “manifestly distinguishable” from the facts of this case. In Lynch,
the plaintiff brought a denial of access to the courts claim because the police officers
who were dispatched to the location where excessive force was allegedly used on him
refused to disclose which police officer was involved in actually exercising that force.
703 F.3d at 1155. The Tenth Circuit noted
Because the focus is on whether the officer had fair notice that her
conduct was unlawful, reasonableness is judged against the backdrop of
the law at the time of the conduct. If the law at that time did not clearly
establish that the officer’s conduct would violate the Constitution, the
officer should not be subject to liability or, indeed even the burdens of
litigation. It is important to emphasize that this inquiry must be
undertaken in light of the specific context of the case, not as a broad
general proposition.
Id. at 1161 (quoting Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160
L.Ed.2d 583 (2004)). It also emphasized that “All this is not to say that qualified
11

immunity shields official action unless controlling precedent squarely holds the
challenged action unlawful; rather ‘in the light of pre-existing law the unlawfulness
must be apparent.’” Id. (emphasis added, quoting Hope v. Pelzer, 536 U.S. 730, 739
(2002)). Although the Tenth Circuit ultimately 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 [in March 2008] . . . . In other words, whether the scope of the
right to access extended as far as Plaintiff claims was ‘far from obvious,’” id. at
1162 (emphasis added), Judge Mix argued that Defendants’ attempts to apply Lynch to
the facts of the case at bar effectively painted its holding with “too broad a brush.” (Doc.
# 74 at 28.) This Court agrees.
As Judge Mix specifically noted, although Lynch’s holding was broadly worded
(in that it related to “an evidentiary cover-up by police officials”), the misconduct actually
alleged by the plaintiff in Lynch involved “only a ‘conspiracy of silence’; in sum, a refusal
to disclose evidence.” (Id. at 29.) Indeed, the police misconduct in that case, although
described by the Tenth Circuit as “inexcusable,” was strictly limited to the officers’
“refus[al] to identify the perpetrator(s)” who struck the plaintiff with excessive force. See
Lynch v. Barrett, No. 11-CV-1120-RBJ-MEH, 2012 WL 1890442, at *1 (D. Colo. May 24,
2012); 703 F.3d at 1155, 1163. In contrast, the conduct alleged here is considerably
more egregious in nature as well as different in kind than the mere failure to disclose
relevant information. Indeed, Plaintiffs specifically allege that the police officers who
investigated Ms. Fallis’ death intentionally fabricated evidence that effectively allowed

12

Mr. Fallis to escape prosecution for Ms. Fallis’ alleged murder for two entire years, 10
including deliberately omitting confessions made by Mr. Fallis himself from their own
police reports; intentionally falsifying evidence from witnesses to fit their falsely
fabricated story that Ms. Fallis committed suicide (including altering witness statements
such as that of neighbor Chesea Arrigo, who actually told the officers, “Call the police,
your neighbor just shot his wife,” but was represented by officers as saying, “Please tell
me you called the cops . . . your neighbor just shot herself”); and presenting incomplete
evidence to the Weld County Coroner who investigated the cause of Ms. Fallis’ death
(who, not incidentally, has since withdrawn his original suicide finding). As such,
Defendants’ attempt to characterize the conduct in this case as a similar “conspiracy of
silence” – by noting that Defendants in this case are also alleged to have “covered up
evidence and did not disclose a confession” (Doc. # 77 at 4) – is, to put it mildly,
unpersuasive. Accordingly, the Court agrees with Judge Mix’s determination that Lynch
is distinguishable and simply does not control the qualified immunity analysis here.
Additionally, it is important to note that In Buck v. City of Albuquerque, 549 F.3d
1269, 1290 (10th Cir. 2008), the Tenth Circuit explained that “[t]he law is clearly
established [for qualified immunity purposes] either if courts have previously ruled that
materially similar conduct was unconstitutional, or if ‘a general constitutional rule
already identified in the decisional law [applies] with obvious clarity to the
specific conduct’ at issue.” Id. at 1290 (emphasis added, quoting United States v.

10

Indeed, Plaintiffs allegations at least indicate that had a reporter not happened to uncover the
alleged misconduct by investigating this case for over a year, it is not clear whether Mr. Fallis
would have ever been indicted at all.
13

Lanier, 520 U.S. 259, 271 (1997)). It is important to note, then, that the Tenth Circuit
has explicitly held that the fabrication of inculpatory evidence and the disregarding of
exculpatory evidence by a forensic chemist in a police department violated a plaintiff’s
clearly established constitutional rights, and noted as follows:
Even if there were no case directly on point imposing liability on
officials whose falsification of evidence occurred at the post-arrest stage,
an official in Ms. Gilchrist's position could not have labored under
any misapprehension that the knowing or reckless falsification and
omission of evidence was objectively reasonable.
Qualified immunity is designed to protect public officials who act in good
faith, on the basis of objectively reasonable understandings of the law at
the time of their actions, from personal liability on account of laterannounced, evolving constitutional norms. Ms. Gilchrist’s alleged
misconduct did not stem from a miscalculation of her constitutional
duties, nor was it undertaken in furtherance of legitimate public
purposes that went awry. Rather, as alleged, Ms. Gilchrist engaged in a
deliberate attempt to ensure the prosecution and conviction of an innocent
man. Such conduct, if it can be proven at trial, violated Mr. Pierce's
constitutional rights with “obvious clarity.”
Pierce v. Gilchrist, 359 F.3d 1279, 1299-300 (10th Cir. 2004) (emphasis added).
Similarly, here, according to Plaintiffs’ allegations, Defendants could not have possibly
labored under “any misapprehension” that falsifying police reports and intentionally
destroying evidence to prevent an individual from being arrested for a murder to which
he allegedly confessed “was objectively reasonable.” Likewise, the alleged misconduct
of the Defendants also did not “stem from a miscalculation of [their] constitutional duties,
nor was it undertaken in furtherance of legitimate public purposes that went awry.”
Although the circumstances here are slightly different from those presented in Pierce,
insofar as Defendants’ misconduct allowed an allegedly guilty man to go free, rather
than led to the incarceration an innocent man, the Court does not believe that the Tenth
14

Circuit would attach any weight to this distinction, particularly in light of the
egregiousness of Defendants’ alleged conduct. See id. at 1298 (noting that the Tenth
Circuit uses a “sliding scale” system in which “the more obviously egregious the conduct
in light of prevailing constitutional principles, the less specificity is required from prior
case law to clearly establish the violation.”)
In sum, Magistrate Judge Mix did not err when she concluded that Defendants’
actions were devoid of objective reasonableness, and their alleged conduct violated
Plaintiffs’ clearly established Constitutional rights to court access.
2. Whether Plaintiffs’ State Tort Claim Must Be Dismissed for Failure to
Provide Timely Written Notice Pursuant to the Colorado Governmental
Immunity Act
The Colorado Governmental Immunity Act (CGIA) required Plaintiffs to serve
Defendants with notice of their tort claims within 182 days of the date of “discovery” of
their injury. Colo. Rev. Stat. § 24-10-109(1). Magistrate Judge Mix acknowledged that
the question of the date of “discovery in the instant case is complicated,” but determined
that Plaintiffs had provided timely written notice, concluding that the earliest possible
point in time when Plaintiffs could have discovered their injury (i.e., the emotional
distress resulting from the Defendants’ alleged destruction, concealment and fabrication
of evidence that their daughter’s death was the result of a murder rather than a suicide),
was April 8, 2014, the date of the investigatory report into Defendants’ alleged
wrongdoing. (Doc. # 81 at 13.) She explained that “clearly Plaintiffs could not have
known the basis for their willful and wanton outrageous conduct claim prior to the
subsequent investigation because, while they were upset about their daughter’s death,

15

they did not know of the alleged actions of Defendants.” (Id.) Defendants counter both
that that Plaintiffs had notice of their claims as of 2012, “when Ashley Fallis’ death was
designated a suicide,” and also that Magistrate Judge Mix erred in failing to hold a socalled “Trinity” evidentiary hearing on the matter of notice, so named for Trinity Broad. of
Denver, Inc. v. City of Westminster, 848 P.2d 916, 928 (Colo. 1993). (Id. at 10.)
It is clear that Judge Mix based her finding of timely notice on the allegations in
Plaintiffs’ Complaint in stating that, “According to Plaintiffs’ allegations, Mr. Joseph’s first
report relating to his investigation of Ashley Fallis’ death aired in April 2014.” (Doc. # 74
at 32.) Accordingly, Defendant’s argument that she did not base this determination on
“admissible factual evidence [indicating] when Plaintiffs’ injury was discovered, such as
affidavits or declarations, because Plaintiffs did not submit any such evidentiary
support,” is well taken. (Doc. # 77 at 10.) It is also clear that, under Colorado law, “[i]f
the facts relating to immunity are in dispute, the court must hold an evidentiary
hearing.” Masters v. Castrodale, 121 P.3d 362, 364 (Colo. App. 2005) (emphasis
added, citing Corsentino v. Cordova, 4 P.3d 1082 (Colo. 2000)); see also Gallagher v.
Bd. of Trustees for Univ. of N. Colo., 54 P.3d 386, 391 (Colo. 2002) (emphasis added)
(“When there is a factual dispute concerning when the plaintiff discovered her injury, an
evidentiary hearing is necessary to resolve the dispute.”) Based on the facts of this
case, the Court does not anticipate Plaintiffs will have difficulty in showing that they
provided timely notice under the CGIA. However, given this dispute, and the fact that
Plaintiffs could have conceivably had adequate suspicions of Defendants’ alleged
wrongdoing prior to April 2014, it seems that an evidentiary hearing is, in fact, required.

16

As such, the Court will not adopt this aspect of Judge Mix’s Recommendation. Instead,
the Court reserves ruling on this issue and will order an evidentiary hearing to be
conducted regarding the timeliness of Plaintiffs’ notice under the CGIA.
III. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the February 29, 2016
Recommendation of United States Magistrate Judge Kristen L. Mix (Doc. # 74) is
AFFIRMED and ADOPTED IN PART as an order of this Court. Specifically, the Court
ADOPTS Magistrate Judge Mix’s conclusion that Plaintiffs’ claims are not barred by
virtue of qualified immunity, as well as her recommendation that Plaintiffs’ “stigma plus”
claim be dismissed, but NEITHER AFFIRMS NOR REJECTS her recommendation
regarding the timeliness of Plaintiffs’ notice under the CGIA. Pursuant to the
Recommendation, it is
FURTHER ORDERED that Defendants’ Motions to Dismiss (Doc. ## 32, 44) are
GRANTED in part (with respect to Plaintiffs’ “stigma plus” claim), DENIED without
prejudice (with respect to the timeliness of Plaintiffs’ notice under the CGIA), and
DENIED as to the remainder. It is
FURTHER ORDERED that the parties are to contact Judge Mix’s chambers to
arrange for a hearing regarding the timeliness of Plaintiffs’ notice under the CGIA.
Finally, it is
FURTHER ORDERED that Defendants’ Motion to Join in Objection to the
Magistrate Judge’s Order and Recommendation Granting in Part and Denying in Part

17

Defendants’ Motions to Dismiss (Doc. # 78) is hereby GRANTED.
Dated: March 31, 2016

BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

18