Cisneros et al v. Kirby et al

Filing 50

ORDER of Dismissal, by Judge Richard P. Matsch on 3/30/2018. (ktera)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00464-RPM
RAFAEL CISNEROS and
MICHAEL ROMERO,
Plaintiffs,
v.
JAY KIRBY and
JOHN BRADBURN, in their individual capacities,
Defendants.
__________________________________________________________________________
ORDER OF DISMISSAL
__________________________________________________________________________
The plaintiffs, Rafael Cisneros and Michael Romero, and the defendants, Jay Kirby
and John Bradburn, are employees of the Colorado Department of Corrections (“CDOC”).
Cisneros and Romero describe themselves as Hispanic citizens of Mexican-American
heritage. The defendants are white men. The plaintiffs claim that this difference motivated
the defendants to target them for criminal prosecution—that is, that the defendants
discriminated against them because of their race and national origin in violation of federal
law.
In the Second Amended Complaint [Doc. 26] the plaintiffs allege violations of 42
U.S.C. § 1981 brought through 42 U.S.C. § 1983 (“First Cause of Action”) plus denial of
equal protection of the law and due process protected by the Fourteenth Amendment to the
United States Constitution, also brought through 42 U.S.C. § 1983 (“Second Cause of

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Action”). An additional claim is asserted for the tort of malicious prosecution under
Colorado common law for which supplemental jurisdiction is invoked under 28 U.S.C. §
1367.
The defendants moved to dismiss the federal claims pursuant to Federal Rule of Civil
Procedure 12(b)(6) and the state claim for lack of jurisdiction pursuant to Rule 12(b)(1).
[Doc. 27; Doc. 28.] For the reasons that follow, the plaintiffs have failed to overcome the
defendants’ entitlement to qualified immunity, requiring dismissal of the federal claims, and
the state claim is dismissed without prejudice.
At the times relevant to this civil action, plaintiff Romero was a Warden at the
Youthful Offender System (“YOS”) facility in Pueblo, Colorado, and Cisneros was a
Maintenance Lieutenant at that same facility. Defendant Bradburn was an investigator with
the CDOC’s Inspector General’s Office under the supervision of defendant Kirby.
Bradburn was assigned to conduct a criminal investigation of Cisneros and Romero in
November 2014. He wrote a report of his investigation in March 2015, which he sent to the
District Attorney with the approval of Kirby.
Criminal charges were filed against Cisneros and Romero for official misconduct
pursuant to C.R.S. § 18-8-404, misdemeanors based on alleged violations of CDOC
Regulation No. 1450-06.
The plaintiffs first learned of these criminal charges by reading a newspaper on
December 13, 2015. Cisneros was arraigned in January 2016, at which one count was
dismissed. Romero was arraigned on May 11, 2016. All counts against him were dismissed

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by the prosecutor on September 19, 2016. Cisneros went to trial on October 6-7, 2016,
resulting in an acquittal by jury verdict.
The filed criminal charges did not contain factual allegations explaining the conduct
upon which the charges were based. It is presumed that the District Attorney relied entirely
on Bradburn’s report. The plaintiffs claim that Bradburn knowingly or recklessly omitted
from his report information which, if included, would have vitiated probable cause for the
charges in violation of clearly established law. They cite Stewart v. Donges, 915 F.2d 572
(10th Cir. 1990). That case held that a detective alleged to have omitted the fact that a
complaining witness in a theft case had recanted his allegations, admitting they were
fabricated, before the affidavit for arrest was submitted would have violated the arrestee’s
rights under the Fourth and Fourteenth Amendments if that allegation proved to be true.
The Bradburn report is Exhibit A submitted with his reply in support of his motion to
dismiss the Second Amended Complaint. [Doc. 43.] It begins with the following statement
of the reason for the criminal investigation:
Information was received indicating Lt. Ralph Cisneros was using inmates work
crews to complete work for his personal business, he was going on trips paid for
by vendors, he was coercing vendors into providing free services to Warden
Romero, and that he was using state time and equipment to perform work for his
private company.
[Id. at 2.]
The report includes detailed summaries of interviews conducted in this investigation.
A fair summary is that none of them could support the rumored allegations that Cisneros
attended the Super Bowl or that inmate labor was used to do work at Roselawn Cemetery that

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was included in a contract between it and Cisneros Construction Company, owned by
Cisneros.
The principal paragraphs that resulted in the decision to refer the matter to the District
Attorney are these:
From the outside looking in, it is easy to speculate Cisneros Construction
is getting paid for the work completed by the YOS Phase II Inmates. Grounds
maintenance is a broad term and can mean several different things. Since Lt.
Cisneros is a full time employee of YOS, and the owner of Cisneros Construction,
a conflict of interest appears to be present in this situation. However, there was
no evidence discovered indicating he was getting paid for the work being
completed by the YOS Inmates.
[Id. at 28.]
While the Fastenal trips attended by Lt. Cisneros may not have been a
direct result of the purchases he made as a DOC employee, they did influence and
encourage him to spend more money with Fastenal. During the time period July
1, 2011 to November 2014, it was recorded by the DOC Controller Mr. Merriam,
that Lt. Cisneros spent a total of $10931.31 at Fastenal. An evaluation of actual
sales receipts taken from Lt. Cisneros self maintained p-card logs for the period
January 1, 2013 to October 20, 2014 revealed he spent a total of $9882.26. This
identifies, during the nearly three and a half years outlined in the report provided
by the controllers office, that it was not until after Lt. Cisneros returned from his
trip with Fastenal that his purchases from Fastenal quickly escalated, spending
just over $1000 with Fastenal from July 1, 2011 to December 31, 2013, then
during the period January 1, 2013 till October 20, 2014 spending nearly ten
thousand[] dollars.
This extreme escalation in spending habits is a clear violation of the State
of Colorado Procurement Code of Ethics. Which states “Never solicit or accept
money, loans, credits, or prejudicial discounts, and avoid the acceptance of gifts,
entertainment, favors, or services from present or potential suppliers which might
influence, or appear to influence purchasing decisions.” The trip provided to Lt.
Cisneros by Fastenal did influence and in fact increase his spending with Fastenal.
As a p-card holder and by signing a copy of the “State of Colorado Department
of Corrections Commercial Card Holder Agreement,” Lt. Cisneros should have
been fully aware his actions were in violation.

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[Id. at 29.]
It is unclear how the exact relationship between Mountain West Glass, Jay
Picco, and Warden Romero was developed. However, during interviews and by
the admission of both Jay Picco and Warden Romero, Warden Romero was
provided service by Mountain West Glass at no charge. All parties involved
including Lt. Cisneros deny there was any favoritism or wrongdoing involved in
this free gift. The extent of Lt. Cisneros’s influence in this situation is unclear.
Mr. Picco, Warden Romero, and Lt. Cisneros deny there was any form of
coercion or threat made about losing or altering any business relationship Mr.
Picco had with the state of Colorado.
Not all accounts of this situation are the same., but Lt. Cisneros does admit
to letting Mountain West Glass know Warden Romero was his supervisor. Mr.
Picco admits to doing a lot of business with the state. Therefore, it is reasonable
to believe that the work done by Mountain West Glass for Warden Romero was
done because of Warden Romero’s position with DOC.
[Id. at 29-30.]
Evidence was discovered during this investigation that Lt. Cisneros does
use State equipment and time to complete work for Cisneros Construction. This
was obvious once his emails were reviewed. There was also evidence of it on
both his state office phone and his state issued cellular phone. However, there is
no way to prove how much time Lt. Cisneros is spending on private business as
compared to state business while working for DOC. It is possible all the phone
calls and emails were completed while Lt. Cisneros was on a break.
The use of state equipment for personal business is obvious with the
emails that were discovered. The use of state equipment is strictly prohibited for
personal gain as outlined in AR1200-06A. On February 9, 2011, Lt. Cisneros
signed and agreed to these rules prior to being given access to the internet.
[Id. at 30.]
Fastenal was an approved vendor for the CDOC, and Cisneros had authority to
purchase from it using a CDOC credit card. Mountain West Glass replaced a broken mirror
in a gym owned by Romero without payment.

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Prompted by the submission of the Bradburn report to the DA, in April 2015 the
Deputy Director of YOS, Alison Morgan, initiated professional standards investigations of
Lt. Cisneros and Warden Romero and also submitted the matter to an ethics board for
independent review. The professional standards investigation and the independent ethics
review involved “the same information as the information submitted for criminal
prosecution.” [Doc. 26 at ¶¶ 47, 50, 52.] In June 2015, Deputy Director Morgan issued a
“Notice of Resolution of Investigation; Notice of No Finding of Misconduct” to both
Plaintiffs stating that “the allegation raised against you in the professional standards
investigation is unfounded.” [Id. at ¶¶ 7-8, 49-50, 52-53, 55.] The ethics board also found
no wrongdoing by either Plaintiff. Defendants Bradburn and Kirby both had knowledge that
Plaintiffs were cleared in the professional standards and ethics board investigations, but they
did not pass that information on to the DA.
It is that omission that the plaintiffs contend is comparable to the Stewart case. The
difference is that the Bradburn report did not result in an arrest in violation of the Fourth
Amendment. Neither defendant submitted a probable cause affidavit for an arrest. It is a
bare assumption that the DA’s office relied exclusively on Bradburn’s report. It is notable
that no criminal charges were filed until December 1, 2015, nine months after the DA
received Bradburn’s report. That delay strongly suggests that some additional information
was obtained before filing the charges.
This is not a case for a Fourth Amendment violation. This is an adverse employment
case based on race and ethnicity discrimination.

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A criminal charge can be considered as an adverse employment action. That was
recognized by the Tenth Circuit Court of Appeals in Berry v. Stevinson Chevrolet, 74 F.3d
980, 986-87 (10th Cir. 1996). There were transfers and stigmatization of the plaintiffs in the
workplace, and their authority was altered. The plaintiffs have adequately alleged adverse
employment action resulting from the charges.
The fatal defect in the Second Amended Complaint is the failure to allege any facts to
support the necessary showing that Bradburn or Kirby was motivated by any bias or animus
toward the plaintiffs because they are Hispanic citizens of Mexican-American heritage.
Circumstantial evidence may support such a claim if there can be a fair inference drawn from
the factual allegations. That is not this case.
Even if one were to draw an inference of some discriminatory intent, the defendants
are shielded from liability by the doctrine of qualified immunity. To overcome that defense,
the plaintiffs must identify such clearly established law that the defendants would know that
they were violating the statute and the Constitution.
These defendants are not trained police officers who would be aware of what
constitutes probable cause for a criminal charge. Bradburn’s report was given to the DA’s
office to make that evaluation.
To show that their conduct was contrary to clearly established law the plaintiffs must
cite to a Supreme Court or Tenth Circuit case holding that a civilian employee assigned to
conduct an investigation of other employees as an inspector general is held to the same

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standard as a trained law enforcement officer in seeking a warrant for an arrest of the subjects
of that investigation. No such case has been cited.
Because the defendants are entitled to qualified immuity, the First and Second Causes
of Action in the second amended complaint are dismissed with prejudice and the Court will
not exercise supplemental jurisdiction on the state law claim in the Third Cause of Action
which is dismissed without prejudice. This civil action is dismissed.
SO ORDERED.
DATED: March 30, 2018
BY THE COURT:
s/Richard P. Matsch
_________________________________
Richard P. Matsch, Senior District Judge

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