Cunningham et al v. Hoff et al

Filing 37

ORDER granting in part and denying in part 18 Corrected Motion to Dismiss, by Magistrate Judge Michael J. Watanabe on 5/26/2017. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.16-cv-01941-MJW
TRAVIS CUNNINGHAM, as the biological father, legal guardian, and next friend of the
minor child, HC;
JERALDINE SKINNER; and
SANG YOON,
Plaintiffs,
v.
CHRISTINE HOFF, individually and acting in her official capacity as a City of Aurora
Municipal Prosecutor;
JOSEPH BUCCERI, individually and acting in his official capacity as a City of Aurora
Municipal Prosecutor;
OFFICER DANIEL SMICK, individually and acting in his official capacity as a City of
Aurora Police Officer,
Defendants.
ORDER ON
DEFENDANTS’ CORRECTED MOTION TO DISMISS (DOCKET NO. 18)

Entered by Magistrate Judge Michael J. Watanabe
This case is before the court pursuant to the parties’ consent to jurisdiction of
magistrate judge. (Docket No. 32.) Now before the court is Defendants’ Corrected
Motion to Dismiss (Docket No. 18). Plaintiffs filed a response (Docket No. 31) and
Defendants filed a reply. (Docket No. 35.) The court has carefully considered the
motion. The court has taken judicial notice of the court’s file and has considered the
applicable Federal Rules of Civil Procedure and case law. The court now being fully
informed makes the following findings of fact, conclusions of law, and order.

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I. BACKGROUND
a. Relevant Facts
The facts recounted below are based on Plaintiffs’ allegations. The court
assumes these facts and allegations are true for purposes of a motion to dismiss.
Plaintiffs are three individuals who each allege that they were unjustly
prosecuted in the City of Aurora (“Aurora”) Municipal Court. Defendants Christine Hoff
and Joseph Bucceri are Aurora city attorneys. Defendant Daniel Smick is an Aurora
police officer. All Defendants are sued in their official and individual capacities.
Plaintiff Skinner, who is “elderly and disabled,” received a summons to appear in
Aurora Municipal Court after she had some sort of dispute with her young, “musclebound” neighbor on May 2, 2015. Prior to the pretrial hearing, held a month later, the
neighbor threatened to assault Skinner and her counsel, which was reported to Aurora
police. A trial was set for July 2, 2015, but after jury selection, Hoff requested and
received a mistrial, claiming that the neighbor was afraid to testify. After Hoff failed to
offer a plea bargain, Skinner was eventually tried by a jury on August 20, 2015, during
which “Hoff made several misleading statements, comments, and arguments about
facts, some not in evidence, in the presence of the jury.” The jury found Skinner not
guilty.
Plaintiff Yoon was summoned to Aurora Municipal Court for stealing garbage
services. Yoon contends that he was just taking the trash out for his vacationing father.
Yoon presented supporting evidence to Hoff on January 4, 2016. Hoff refused to
dismiss the case and persisted in the prosecution even after Yoon’s father appeared in

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court and presumably supported his son’s claims. Hoff, however, did eventually dismiss
the case on January 21, 2016, which was the same day Yoon’s counsel subpoenaed
the homeowner’s association’s agents as trial witnesses.
Plaintiff Cunningham was a juvenile on October 23, 2015, the day that he
received a summons to Aurora Municipal Court for fighting. He had been jumped at
high school and was defending himself. When Cunningham and his father appeared in
court, they were told by Hoff that if Cunningham did not accept the plea offer that day, it
would be revoked. Cunningham hired legal counsel who learned that an exculpatory
video of the fight existed but had been destroyed. On January 19, 2016, Cunningham
filed a motion to dismiss based on law enforcement’s failure to preserve this evidence.
During a February 10, 2016 motions hearing, Bucceri, after speaking privately with
Smick, told Cunningham’s counsel that Smick made a verbal request to the school to
preserve the video. Cunningham contends that this was a lie and offers several reasons
to suspect that Bucceri assisted Smick in devising it. Smick gave testimony on February
20, 2016, that was consistent with this supposed falsehood. The judge ruled against
Cunningham based on Smick’s perjured testimony. Cunningham subsequently found
evidence contradicting Smick’s story. The charges were eventually dropped on April 13,
2016, by another municipal prosecutor, Andrea Wood.
b. Procedural History
Plaintiffs originally filed this action on June 22, 2016, in Arapahoe County District
Court. Their Complaint (Docket No. 2) asserts four claims for relief: (1) malicious
prosecution; (2) abuse of process; (3) violations of their constitutional rights under 42
U.S.C. § 1983; and (4) injunctive relief-specific performance in the form of Defendants’
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“immediate abatement of actions complained herein, and resignation from all positions
held within the City of Aurora.” On July 29, 2016, Defendants timely removed the case
to federal court pursuant to 28 U.S.C. §§ 1441 and 1446. Defendants responded to the
Complaint by filing the subject motion to dismiss for lack of subject matter jurisdiction
and for failure to state a claim for which relief may be granted. (Docket No. 18.)
II. STANDARDS OF REVIEW
a. Lack of Subject Matter Jurisdiction
Federal Rule of Civil Procedure Rule 12(b)(1) empowers a court to dismiss a
complaint for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Dismissal
under Rule 12(b)(1) is not a judgment on the merits of a plaintiff’s case. Rather, it calls
for a determination that the court lacks authority to adjudicate the matter, attacking the
existence of jurisdiction rather than the allegations of the complaint. See Castaneda v.
INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of
limited jurisdiction and may only exercise jurisdiction when specifically authorized to do
so). The burden of establishing subject matter jurisdiction is on the party asserting
jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A
court lacking jurisdiction “must dismiss the case at any stage of the proceedings in
which it becomes apparent that jurisdiction is lacking.” See Basso, 495 F.2d at 909. The
dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218
(10th Cir. 2006)
b. Failure to State a Claim Upon Which Relief Can Be Granted
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to

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dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential
evidence that the parties might present at trial, but to assess whether the plaintiff’s
complaint alone is legally sufficient to state a claim for which relief may be granted.”
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and q uotation
marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall,
935 F.2d at1198. “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the
plaintiff pleaded facts which allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two
prongs of analysis. First, the court identifies “the allegations in the complaint that are
not entitled to the assumption of truth,” that is, those allegations which are legal
conclusion, bare assertions, or merely conclusory. Id. at 679–81. Second, the court
considers the factual allegations “to determine if they plausibly suggest an entitlement
to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim
survives the motion to dismiss. Id. at 679.
However, the court need not accept conclusory allegations without supporting
factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th

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Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’ Nor does the
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.’ ” Id. (citation omitted).
III. ANALYSIS
a. 42 U.S.C. § 1983 Claims for Damages and Injunctive Relief
Plaintiffs bring a claim against Defendants, both in their individual and official
capacities, for violations of their constitutional rights under 42 U.S.C. § 1983. Plaintiffs
also seek injunctive relief “in the form of the defendants immediate abatement of the
actions complained herein, and resignation from all positions held within the City of
Aurora.” (Docket No. 2 at 8.)
“To establish personal liability in a § 1983 action, it is enough to show that the
official, acting under color of state law, caused the deprivation of a federal right.”
Kentucky v. Graham, 473 U.S. 159, 166 (1985). However, “a governmental entity is
liable under § 1983 only when the entity itself is a ‘moving force’ behind the
deprivation.” Id. (internal cites and quotes omitted).
Plaintiffs plead their § 1983 claim as follows:

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The following averments establish that these governmental
defendants violated and deprived the plaintiffs from state and
federal constitutional and statutory rights including but not
limited to: denial of presumption of innocence; lack of probable
cause; denial of due process; 5th Amend., 6th Amend.; 14th
Amend.; Colo. Const. art. II, §§ 3, 6, 8, 16, 18, and 25;
C.M.C.R. 200 et. seq.; Colo. Crim. R. Proc.; Colo. Rev. Stat.
Titles 16 and 18; CJI-Civ. 17:10(A)-(B); and 42 U.S.C. §§ 1983
- 1988.
(Docket No. 2 ¶ 16.)
In order to state a claim in federal court a plaintiff must explain (1) what a
defendant did to him; (2) when the defendant did it; (3) how the defendant’s action
harmed him; and (4) what specific legal right the defendant violated. Nasious v. Two
Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).T hese constitute the
basic “elements that enable the legal system to get weaving—permitting the defendant
sufficient notice to begin preparing its defense and the court sufficient clarity to
adjudicate the merits.” Id. Failure to meet the basic standards required by Fed. R. Civ.
P. 8 will lead to dismissal under Fed. R. Civ. P. 12.
Plaintiffs allegations do not identify which Defendants were responsible for which
deprivations of liberty. They do not state what specific legal rights were violated or by
whom. Indeed, the string of citations to whole titles of the Colorado Revised Statutes
and the entire Colorado Rules of Criminal Procedure render this allegation so broad as
to be meaningless.
As a result, the parties often argue past each other in the briefing on Defendants’
motion. Defendants read Plaintiffs’ Complaint to assert essentially only two claims for
relief: malicious prosecution and abuse of process, both brought under § 1983.
Plaintiffs, on the other hand, make it clear in their responsive filing that their § 1983
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claim is not premised on malicious prosecution or abuse of process, which they
characterize as state law tort claims. What their § 1983 claim is premised on, however,
is indecipherable. The court doubts that Plaintiffs themselves even know. For example,
while they maintain that their § 1983 is not based on abuse of process, the above
averment specifically cites (for whatever reason) the Colorado Civil Jury Instruction for
the tort of abuse of process tort. Under these circumstances, Plaintiffs’ Complaint
provides neither the Defendants nor the court with specific allegations as to the legal
rights Defendants are alleged to have violated.
This lack of specificity is fatal to Plaintiffs’ claim for injunctive relief, as will be
discussed below. However, for purposes of damages, the court has enough information
to determine that Plaintiffs fail to state a claim against Defendants in their official
capacity and that Defendants would be immune from liability even if Plaintiffs’
Complaint was sufficiently and plausibly pled. For this limited purpose, the court
outlines Plaintiffs’ claims as follows. Plaintiff Skinner’s claim against Defendant Hoff is
based on Hoff’s decisions to (1) request for and receive a mistrial; (2) retry Skinner; and
(3) during that trial, make false or misleading statements. Plaintiff Yoon’s claim is also
against Hoff and is based on her decision to not dismiss the case after being informed
of evidence that exonerated Yoon. Plaintiff Cunningham alleges that Hoff pressured
him to take a plea deal, which amounted to an attempt to punish him for seeking
counsel. Cunningham also alleges that Defendants Bucceri and Smick conspired to put
on perjured testimony about Smick requesting the exculpatory video of the altercation
during a motions hearing, and then did put on perjured testimony.

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1. Claims Against Defendants in their Official Capacity
Claims against local officials in their official capacity are simply another way of
pleading an action against an entity of which an officer is an agent. Kentucky, 473 U.S.
at 165. Thus, Plaintiffs’ official capacity claims are brought against the City of Aurora.
To establish municipal liability under § 1983, Plaintiffs must demonstrate: (1) that the
city officials committed an underlying constitutional violation; (2) that a municipal policy
or custom exists; and (3) that there is a direct causal link between the policy or custom
and the injuries alleged. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006). 1
In addition to failing to state with any specificity what constitutional violations
were committed, Plaintiffs’ Complaint also does not, as a matter of law, demonstrate
that any customs, policies, or practices of Aurora were the driving force behind
Defendants’ allegedly unconstitutional actions. Plaintiffs point to no formal or official
policies promulgated by Aurora. Instead, they allege that Defendants’ “tactics are a
pattern or habitual practice of the Aurora City Attorney Office” and that “[b]ecause of the
breadth and length of this pattern or practice, not to mention the notorious reputation
this office has in the community, prosecutors . . . have training or protocols put in place
. . . that perpetuate this type of conduct.” (Docket No. 2 ¶¶ 14-15.)
There are several problems with this argument. First, the facts of the individual
Plaintiffs’ cases are not similar enough to support their contention that some sort of
policy motivated Defendants to violate Plaintiffs’ rights. For example, the case against
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Contrary to the assertion contained in the Complaint (Docket No. 2 ¶¶ 4-5),
municipal liability in a § 1983 case cannot be established on a t heory of vicarious
liability. Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 770 (10th Cir.
2013).
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Plaintiff Skinner was taken to trial while those against Yoon and Cunningham were
dismissed. Plaintiff Cunningham was a juvenile while Skinner was elderly. Cunningham
alleges that Defendants conspired to commit perjury and tried to intimidate him into not
seeking legal advice; neither Skinner and Yoon make analogous claims. In short, no
custom or policy can be deduced from these factually disparate cases.
Nevertheless, Plaintiffs argue that the “Complaint itself is direct and
circumstantial evidence of the existence of a municipal policy, pattern, practice[,] or
custom having occurred to three separate individuals in a year.” (Docket No. 31 at 11.)
Not only is this reasoning circular, it presumes too much. Three cases in a twelve
month period, even assuming all of the facts as alleged are true, is simply too small a
sample size to support an inference that Aurora maintains constitutionally dubious
customs or policies. This is especially true because Plaintiffs provide no context for the
figure. Three cases out of ten might show a pattern; three cases out of hundreds or
thousands means next to nothing. Moreover, the assertion in their response that the
named Plaintiffs constitute a “random, blind sampling” of those prosecuted by Aurora is
wholly unsupported by the allegations in the Complaint or any extrinsic evidence
provided to the court.
Tellingly, Plaintiffs’ claim that the Aurora City Attorney’s Office, as a matter of
policy or custom, violates the rights of those accused of municipal offenses is
undermined by their admission that prosecutor Andrea W ood exhibited good judgment
in dismissing Cunningham’s case. Plaintiffs do not attempt to explain this discrepancy.
The most obvious answer is that Aurora city attorneys exercise their broad prosecutorial
discretion as they see fit and in ways that can vary from prosecutor to prosecutor. Such
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an interpretation certainly does not support Plaintiffs’ vague and conclusory allegations
of systemic misconduct.
For these reasons, the court finds that Plaintiffs cannot maintain official capacity
claims against Defendants Hoff and Bucceri.
Finally, while Plaintiffs’ Complaint only vaguely references customs, policies, and
practices implicating the Aurora City Attorney’s Office, it is completely silent regarding
the Aurora Police Department, which employed Defendant Smick. Given that Plaintiffs
have failed to identify any policy or custom of the police department as the moving force
behind Smick’s alleged violations of Cunningham’s rights, the court will only consider
his individual liability.
2. Claims Against Defendants in their Individual Capacity
Individual liability under § 1983 applies whenever an officer of a local
government acts under color of state law to deprive an individual of a constitutional
right. Kentucky, 473 U.S. at 166. Local government officials sued in their individual
capacity under § 1983 may assert defenses of qualified or absolute immunity. A claim
of immunity is an “immunity from suit” and not a “mere defense to liability.” Siegert v.
Gilley, 500 U.S. 226, 233 (1991). Defendants argue that they are immune from suit.
Specifically, Defendants maintain that Hoff and Bucceri, as prosecutors, are entitled to
absolute immunity, and that Smick is entitled to qualified immunity as a law
enforcement officer. For the reasons set forth below, the court finds that all Defendants
are entitled to absolute immunity, and that Plaintiffs’ § 1983 claim for damages must be
dismissed.

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i. Defendants Hoff and Bucceri
The Supreme Court has held that a prosecutor is absolutely immune for activities
which are “intimately associated with the judicial [process]” such as initiating and
pursuing a criminal prosecution. Imbler v. Pachtman, 424 U.S. 409, 430 (1976).
Prosecuting attorneys are absolutely immune from suit under § 1983 for decisions to
prosecute, Hammond v. Bales, 843 F.2d 1320, 1321 (10th Cir.1988), and to not
prosecute. See Dohaish v. Tooley, 670 F.2d 934, 938 (10th Cir.1982). Moreover,
absolute immunity extends to “liability for allegedly failing to conduct an adequate,
independent investigation of matters referred to them for prosecution.” Scott v. Hern,
216 F.3d 897, 909 (10th Cir. 2000). Prosecutorial im munity “does not extend to actions
that are primarily investigative or administrative in nature, though it may attach even to
such administrative or investigative activities when these functions are necessary so
that a prosecutor may fulfill his function as an officer of the court.” Snell v. Tunnell, 920
F.2d 673, 693 (10th Cir.1990). Generally, “the more distant a function is from the
judicial process and the initiation and presentation of the state’s case, the less likely it is
that absolute immunity will attach.” Id. at 687.
It is obvious to the court that Defendants Hoff and Bucceri are entitled to
absolute immunity. They were acting in their capacities as Aurora City Attorneys in their
interactions with Plaintiffs. There are no allegations that either performed any
investigatory or administrative functions in relation to the charges brought against
Plaintiffs. These prosecutors were not involved in the decision to arrest or serve the
summons on Plaintiffs. Instead, it is uncontested that they were only involved after the

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charges were brought. (Docket No. 2 ¶¶ 17(b), 18(b), & 19(b)-(l).) Thus, Hoff and
Bucceri were acting in their roles as advocates for the city and their actions, including
evaluating evidence, speaking to witnesses, and taking cases to trial, were directly
related to their prosecutorial functions.
Accordingly, absolute prosecutorial immunity acts as a complete bar to Plaintiffs’
§ 1983 claims for damages against Defendants Hoff and Bucceri.
i. Defendant Smick
Prosecutors are not the only individuals who may be entitled to absolute
immunity. A witness sued under § 1983 enjoys absolute immunity from any claim based
on his testimony. See Briscoe v. LaHue, 460 U.S. 325 (1983). This applies to trial
witnesses, id. at 326, grand jury witnesses, Rehberg v. Paulk, 566 U.S. 356, 369
(2012), and those who testify at criminal preliminary hearings. Handy v. City of
Sheridan, 636 F. App’x 728, 742 (10th Cir. 2016) (unpublished). 2 Absolute immunity is
even afforded to testimony that the witness knows to be false. PJ ex rel. Jensen v.
Wagner, 603 F.3d 1182, 1196 (10th Cir. 2010). It is settled law that absolute immunity
protects police officer witnesses. Briscoe, 460 U.S. 325 at 342-344. This immunity
exists because a witness’ fear of retaliatory litigation may influence their testimony and
because other sanctions for false testimony, chiefly prosecution for perjury, provide a
sufficient deterrent. Rehberg, 566 U.S. at 367.

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Although the Tenth Circuit had previously rejected the availability of absolute
immunity when a police officer testifies in a pretrial hearing as a “complaining witness”
as opposed to a lay witness testifying at trial, see Anthony v. Baker, 955 F.2d 1395
(10th Cir.1992), that distinction was overturned by the Supreme Court in Rehberg. See
Handy, supra. See also Hinman v. Joyce, 201 F. Supp. 3d 1283, 1291 (D. Colo. 2016).
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With these principles in mind, the court turns to Plaintiffs’ claim that Smick
violated Cunningham’s constitutional rights by committing perjury when Smick stated
that he made verbal requests to the school to preserve the video of Cunningham’s fight.
Even assuming that Cunningham’s narrative of events is accurate–that Smick’s
testimony at the motions hearing was false, that he never spoke to school officials to
request that evidence be preserved, and that he lied about doing so in order to avoid
dismissal of the case–Smick is shielded from any civil liability allegedly flowing from this
testimony. Accordingly, Cunningham cannot maintain a § 1983 claim for damages
against Defendant Smick.
3. Injunctive Relief
Insofar as Plaintiffs’ request for injunctive relief is brought against Defendants in
their official capacity, that claim fails because Plaintiffs did not demonstrate the
existence of any municipal custom or custom. See Los Angeles Cty., Cal. v. Humphries,
562 U.S. 29, 39 (2010) (“Monell’s ‘policy or custom’ requirement applies in § 1983
cases irrespective of whether the relief sought is monetary or prospective.”).
As to individual injunctive liability, while absolute immunity shields the
Defendants from any § 1983 damages, they may still be liable for declaratory and
injunctive relief. See Supreme Court of Virginia v. Consumers Union, 446 U.S. 719,
736–37 (1980). However, the inadequacy of the Complaint’s § 1983 claim requires that
injunctive relief be denied. The court was able to determine that Defendants were
entitled to immunity based only on the uncontroverted facts contained in the Complaint
because absolute immunity would protect their actions regardless of the precise

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underlying constitutional violation. This is decidedly not the case in reviewing Plaintiffs’
request for injunctive relief. Without knowing what legal rights Defendants may have
violated, the court cannot fashion any meaningful equitable or injunctive relief.
Moreover, Defendants cannot prepare any meaningful defense if they have no idea
what constitutional provisions they are alleged to have violated. For example, should
they each have to prepare a defense for a claim that their actions somehow constituted
violations of 42 U.S.C.A. §§ 1985 & 1986? These sections are referred to in the
Complaint. So are the Colorado Rules of Criminal Procedure. Should it be left to the
Defendants’ imagination which rules they are alleged to have broken? The court thinks
not. Accordingly, Plaintiffs’ claim for injunctive relief must be dismissed without
prejudice pursuant to Fed. R. Civ. P. 12(b)(6).
b. Plaintiffs’ State Law Claims
Under 28 U.S.C. § 1367(c), the “district courts may decline to exercise
supplemental jurisdiction over a claim . . . [if] the district court has dismissed all claims
over which it has original jurisdiction.” 28 U.S.C. § 1367(c). See also Keller v. Porter
Hosp., 265 F. App’x 729, 731 (10th Cir. 2008). The court has determined that Plaintiffs’
§ 1983 claims against Defendants for damages and injunctive relief must be dismissed.
Because Plaintiffs have admitted that their claims for malicious prosecution and abuse
of process are state law tort claims, it is within the discretion of the court whether to
exercise supplemental jurisdiction over the remainder of the case. The court declines to
exercise that discretion. Accordingly, the case will be remanded to Arapahoe County
District Court.

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IV. ORDER
Based upon the foregoing, it is hereby
ORDERED that Defendants’ Corrected Motion to Dismiss (Docket No. 18) is
GRANTED IN PART and DENIED IN PART. Specifically,
Plaintiffs’ claim for relief under 42 U.S.C. § 1983 is DISMISSED WITH
PREJUDICE;
Plaintiffs’ claim for injunctive relief-specific performance is DISMISSED
WITHOUT PREJUDICE; and
Plaintiffs’ state law tort claims for malicious prosecution and abuse of
process are REMANDED to Arapahoe County District Court under
Arapahoe County District Court Case No. 16-cv-031565.

BY THE COURT
Date: May 26, 2017
Denver, Colorado

s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge

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