Kessler v. Hoak et al
ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 11/18/15. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01474-GPG
MARY HOAK #21884, Grand County Judge,
ASHLEY SHELTON #44841, Deputy Grand Prosecutor,
DOUG WINTERS, Grand CO DA Investigator,
ROD JOHNSON, Grand CO Sheriff,
BRETT BARKEY #15883, Deputy Grand CO DA,
GAVIN FALATKO, Grand CO Sheriff Deputy, and
BRETT SCHROETLIN, Grand CO Sheriff (2014),
ORDER OF DISMISSAL
Plaintiff, Daniel Kessler, initiated this action by filing pro se a Complaint (ECF No.
1). On August 9, 2015, Magistrate Judge Gordon P. Gallagher ordered Mr. Kessler to
file an amended complaint that clarifies the claims he is asserting in this action. On
November 10, 2015, Mr. Kessler filed an amended Complaint (ECF No. 12). He asserts
three claims for relief pursuant to 42 U.S.C. § 1983 contending his rights under the United
States Constitution have been violated. He seeks damages as relief.
The Court must construe the amended Complaint liberally because Mr. Kessler 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 amended 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
should not be an advocate for a pro se litigant. See id. For the reasons stated below,
the Court will dismiss the action.
Mr. Kessler’s claims in the amended Complaint stem from his conviction in a
Colorado state court criminal case for violating bail bond conditions. He alleges the
following facts in support of his claims:
The Plaintiff, Daniel Kessler, was arrested in regard to
a Possession of a Controlled Substance, Schedule II and
DUI, the most serious charge being a class Six felony.
Plaintiff posted bond and was set free. The charges filed
were docket number 2013CR58 and were filed approximately
May 2013. Plaintiff set the charges for trial in the Grand
County District Court.
On September 27, 2013, a motion to revoke the bond
in case number 2013CR58 was heard before Judge Mary
Hoak, who heard evidence and testimony from the
prosecutor. Hoak then dismissed the complaint, presumably
On December 17, 2013, an affidavit and arrest warrant
were brought before Judge Hoak bearing case number
2013CR111, concerning allegations of violating bail bond
conditions, the identical information brought before Hoak
previously in the attempt to revoke the Plaintiff’s bond on
September 27. This affidavit and arrest warrant were
prepared and signed (affirmed under oath) by DA’s
investigator Doug Winters. On December 29, 2013, the
Plaintiff was arrested on case 2013CR111 and held on a no
bond hold for violation of bail bond conditions, a class six
felony. The arrest was executed by Sheriff Deputy Gavin
Falatico of the Grand County Sheriff’s Office, under the order
and supervision of Sheriff Rod Johnson, and later by the
Sheriff-elect, Brett Schroetlin.
The Plaintiff believes that the charges brought in case
number 2013CR111 were brought against him in retaliation
for setting the 2013CR58 case for trial. The complaint was
prosecuted by Deputy DA Ashley Shelton, under the direct
supervision of District Attorney Brett Barkey.
The Plaintiff believes that all the Defendants named
had direct knowledge of the vindictive nature of the charges in
case number 2013CR111 because of the intimate nature of
the law enforcement and judicial communities in Grand
County. The supervisors (DA Barkey and Sheriffs) were
directly involved in the bad acts because they gave direct
instructions to their underlings, and knowing the
circumstances of the duplicative charges.
As a result of this malicious prosecution, false arrest,
and double jeopardy, the Plaintiff lost liberty, costs, fees, loss
of income, and a distinct disadvantage during the disposition
of the charges in case number 2013CR58. As such, the
Plaintiff will be seeking actuarial, exemplary and punitive
damages in this case. The Plaintiff asserts that any injury
that was inflicted upon him was willful and wanton, and in a
knowing and reckless manner.
(ECF No. 12 at 2-3.) Mr. Kessler specifically asserts three constitutional claims alleging
he was denied due process as a result of a selective or vindictive prosecution in case
number 2013CR111 (claim one); his conviction in 2013CR111 violates the Double
Jeopardy Clause (claim two); and his Fourth Amendment rights were violated as a result
of a false and malicious arrest on the charges in case number 2013CR111 (claim three).
Mr. Kessler’s claims for damages must be dismissed because the claims are
barred by the rule in Heck v. Humphrey, 512 U.S. 477 (1994). Pursuant to Heck, if a
judgment 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.
In short, a civil rights action “is barred (absent prior invalidation) B no matter the relief
sought (damages or equitable relief), no matter the target of the prisoner’s suit (state
conduct leading to conviction or internal prison proceedings) B if success in that action
would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v.
Dotson, 544 U.S. 74, 81-82 (2005).
Although Mr. Kessler contends he is challenging only the constitutionality of the
procedures used to obtain his conviction and not the conviction itself, the Court is not
persuaded. It is apparent that Mr. Kessler’s malicious prosecution claim implicates the
validity of his conviction in case number 2013CR111. See Heck, 512 U.S. at 484-86.
Similarly, his double jeopardy claim also implicates the validity of that conviction. See
Roberts v. O’Bannon, 199 F. App’x 711, 714 (10th Cir. 2006). It is true that success on a
false arrest claim does not always imply the invalidity of a criminal conviction. See
Crabtree v. Oklahoma, 564 F. App’x 402, 404 (10th Cir. 2014) (citing Beck v. City of
Muskogee Police Dep’t, 195 F.3d 553, 558 (10th Cir. 1999). However, because Mr.
Kessler presents no factual allegations in support of his false arrest claim beyond the
factual allegations that support his malicious prosecution and double jeopardy claims, it is
clear that the false arrest claim in the amended Complaint also implicates the validity of
his conviction in case number 2013CR111. See id. at 404-05.
Mr. Kessler does not allege, and there is no indication in the amended Complaint,
that he has invalidated the validity of the challenged conviction. Therefore, Mr. Kessler’s
claims for damages are barred by the rule in Heck and must be dismissed. The
dismissal will be without prejudice. See Fottler v. United States, 73 F.3d 1064, 1065
(10th Cir. 1996).
In addition, even if Mr. Kessler’s claims were not barred by Heck, other reasons
support dismissal of various claims in this action. First, as Magistrate Judge Gallagher
noted, judges are absolutely immune from liability in civil rights suits for money damages
for actions taken in their judicial capacity unless the judge was acting in the clear absence
of all jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman,
435 U.S. 349, 356-57 (1978); Hunt v. Bennett, 17 F.3d 1263, 1266-67 (10th Cir. 1994).
Similarly, “acts undertaken by a prosecutor in preparing for the initiation of judicial
proceedings or for trial, and which occur in the course of his [or her] role as an advocate
for the State, are entitled to the protections of absolute immunity.” Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993). Therefore, Defendants Hoak, Shelton, and
Barkey are entitled to absolute immunity.
Mr. Kessler also fails to allege specific facts that demonstrate the supervisory
officials named as Defendants personally participated in the asserted constitutional
violations. “Individual liability under § 1983 must be based on personal involvement in
the alleged constitutional violation.” Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.
1997). Thus, a defendant may not be held liable for the unconstitutional conduct of his or
her subordinates on a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009).
Next, Mr. Kessler fails to allege facts that would allow him to recover damages
from Defendants in their official capacities. Official capacity suits “generally represent
only another way of pleading an action against an entity of which an officer is an agent.”
Monell v. Department of Social Services, 436 U.S. 658, 690 n.55 (1978). Therefore, Mr.
Kessler’s official capacity claims against the state officials named as Defendants must be
construed as claims against the State of Colorado and the claims against the county
officials named as Defendants must be construed as claims against Grand County.
However, the claims for damages against the State of Colorado are barred by the
Eleventh Amendment. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66
(1989). With respect to any claims against Grand County, Mr. Kessler fails to allege
facts that demonstrate he suffered an injury caused by a municipal policy or custom.
See Schneider v. City of Grand Junction Police Dept., 717 F.3d 760, 769-71 (10th Cir.
2013) (discussing Supreme Court standards for municipal liability); Dodds v. Richardson,
614 F.3d 1185, 1202 (10th Cir. 2010). Therefore, Mr. Kessler’s official capacity claims
also lack merit.
Finally, to the extent Mr. Kessler may be asserting any state law tort claims in the
amended Complaint, the Court declines to exercise supplemental jurisdiction over those
claims because the constitutional claims over which the Court has original jurisdiction will
be dismissed. See 28 U.S.C. § 1367(c)(3).
Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore in forma pauperis status will
be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Plaintiff files a notice of appeal he also must pay the full $505 appellate filing
fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for
the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24. Accordingly, it
ORDERED that the Complaint, the amended Complaint, and the action are
dismissed without prejudice because Plaintiff’s constitutional claims for damages are
barred by the rule in Heck. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied
without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on
appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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