Moses-El v. City and County of Denver et al

Filing 136

OPINION AND ORDER DENYING MOTION TO ALTER JUDGMENT AND MOTION TO AMEND entered by Judge Marcia S. Krieger on 2/21/2020. Denying 121 Motion to Alter Judgment. Denying 122 Motion for Leave. (rkeec)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
SENIOR JUDGE MARCIA S. KRIEGER
Civil Action No. 17-cv-03018-MSK-NRN
CLARENCE MOSES-EL,
Plaintiff,
v.
CITY AND COUNTY OF DENVER,
MITCHELL R. MORRISSEY,
BONNIE BENEDETTI,
ROBIN WHITLEY,
LYNN KIMBROUGH,
JEFF CARROLL,
DR. KATHRYN BROWN-DRESSEL, and
ESTATE OF JAMES HUFF,
Defendants.
______________________________________________________________________________
OPINION AND ORDER DENYING MOTION TO ALTER JUDGMENT AND MOTION
TO AMEND
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to Mr. Moses-El’s Motion To Alter
Judgment (# 121), the Defendants’ responses (# 126, 130), and Mr. Moses-El’s replies (# 128,
133); and Mr. Moses-El’s Motion for Leave to File a Second Amended Complaint (# 122), the
Defendants’ responses (# 125, 129), and Mr. Moses-El’s replies (# 127, 134).
The Court assumes the reader’s familiarity with the proceedings to date, and most
importantly, the Court’s March 25, 2019 Opinion and Order (# 119) that granted the Defendants’
motions to dismiss Mr. Moses-El’s claims. Thus, the Court offers only a cursory summary of
this case. Mr. Moses-El was wrongfully convicted of violently raping a woman in 1987. In
2012, the true perpetrator of that crime confessed and in 2015, the state court vacated Mr.

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Moses-El’s conviction. Skeptical of the veracity of that confession, prosecutors chose to re-try
Mr. Moses-El for the 1987 rape, but in 2017, a jury acquitted him. Mr. Moses-El then
commenced this suit, asserting various constitutional claims under 42 U.S.C. § 1983 against
certain law enforcement officials and prosecutors who were involved in his first and second
trials. All of the Defendants moved to dismiss Mr. Moses-El’s claims pursuant to Fed. R. Civ. P.
12(b)(6), and on March 25, 2019, this Court granted those motions.
Mr. Moses-El first moves (# 121) for reconsideration of the Court’s March 25, 2019
decision, arguing that the Court misapplied the Rule 12(b)(6) standard and contending that Mr.
Moses-El has stated several colorable claims. Alternatively, Mr. Moses-El moves (# 122) for
leave to amend his pleadings to amplify some of his allegations against certain defendants.
A. Motion for Reconsideration
Mr. Moses-El’s Motion to Alter Judgment was filed within 28 days of the Court’s entry
of judgment, and thus, the Court construes that motion as being brought pursuant to Fed. R. Civ.
P. 59(e). A party seeking relief from a final judgment under that rule must show that there has
been an intervening change in the controlling law, newly-discovered evidence that was
previously unavailable, or that there is a need to correct a clear error or manifest injustice. Burke
v. Bigelow, ___ Fed.Appx. ___, 2019 WL 5212884 (10th Cir. Oct. 10, 2019), citing Servants of
the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). The manifest injustice standard
may be met where the party demonstrates that the Court previously misapprehended the party’s
position or the controlling law. Paraclete, 204 F.3d at 1012.
1. Misapplication of the Iqbal standard
Here, Mr. Moses-El first contends that this Court misapplied the “plausibility” standard
articulated by Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). As the Supreme Court explained in

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Iqbal, a plaintiff must state a claim to relief that is “plausible on its face.” That “plausibility”
requirement is “not akin to a ‘probability requirement,’” but it does “ask[ ] for more than a sheer
possibility that a defendant has acted unlawfully.” Thus, it is not sufficient for a plaintiff to
“plead facts that are ‘merely consistent with’ a defendant’s liability,” as such pleading “stops
short of the line between possibility and plausibility.” Id. at 678. Iqbal and decisions following
it reveal a spectrum of pleading sufficiency. Factual allegations that merely state factual or legal
conclusions fall at one end; they are insufficient. Bell Atlantic Corp. v. Twonbly, 550 U.S. 544,
555 (2009) (“labels and conclusions[ ] and a formulaic recitation of the elements of a cause of
action will not do”). Moreover, specific factual allegations that are equally consistent with both
lawful and unlawful conduct do not suffice. Khalik v. United Air Lines, 671 F.3d 1188, 1191
(10th Cir. 2012). To be sufficient at the pleading stage, the well-pled factual allegations must
plausibly lead to a legal or factual conclusion. Plausibility does not require a plaintiff to plead so
many or such potent facts that the conclusion is probable or unavoidable. Put a different way, a
plaintiff need not prove its case at the pleading stage. But the Plaintiff must plead facts that, if
treated as true, permit the conclusion that unlawful conduct has occurred.
The reasoning in Khalik is instructive. In Khalik, the 10th Circuit described the standard
as a “middle ground between heightened fact pleading” (showing “probability” requirement)
and nothing more than “labels and conclusions or a formulaic recitation of the elements of a
cause of action” (showing, at most, “possibility” ). 671 F.3d at 1191. It explained that
“plausibility” “refers to the scope of the allegations in a complaint: if they are so general that the
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.” Id. The question of what particular

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facts must be pled in order to meet the plausibility requirement is a “context-specific task that
requires the reviewing court to draw on its judicial expertise and common sense.” Id.
There are several principles that help focus and sharpen the plausibility inquiry. First,
there is the venerable requirement that a court must treat all of the facts alleged by the plaintiff as
true. But this requirement is subject to a caveat - it does not apply to “mere conclusory
statements.” The court is “not bound to accept as true a legal conclusion couched as a factual
allegation.” Iqbal, 556 U.S. at 678. Thus, if the claim requires the plaintiff to allege that a
defendant acted “willfully and wantonly,” it does not suffice for the plaintiff to allege in the
complaint simply that “Defendant acted willfully and wantonly” – facts from which “willful or
wanton” behavior can be inferred must be pled. Second, the court must draw reasonable
inferences in the light most favorable to the plaintiff. But again, this requirement is subject to a
condition: “where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint . . . has not shown that the pleader is entitled to relief.”
Iqbal, 556 U.S. at 679. For example, if the claim requires the plaintiff to show that the defendant
drove his or her car in a willful or reckless manner, simply alleging that the defendant caused an
accident will not suffice. Certainly, one possible inference that can be drawn from an auto
accident is that the driver was willful or reckless, but without more, such an allegation does
nothing more than describe a “mere possibility.” If the plaintiff pled additional facts that
dispelled other possible explanations consistent with mere negligence – e.g. that the driver’s
vehicle was facing the wrong way on a one-way street at the scene of the accident and there was
an absence of skid marks from the driver’s sudden braking – the plaintiff might ultimately
elevate allegations of recklessness above mere “possibility” and into the realm of sufficient
“plausibility.”

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Mr. Moses-El contends that the Court erred in its application of these principles to his
malicious prosecution claims against Mr. Huff and Dr. Brown. That claim requires Mr. MosesEl to allege facts that show that these Defendants took actions that prolonged his (unjustified)
prosecution or confinement, and that they did so “with malice.” Margheim v. Buljko, 855 F.3d
1077, 1085 (10th Cir. 2017). Under Colorado law, “malice” occurs when a defendant’s “primary
motive was a motive other than a desire to bring to justice a person [the defendant] through had
committed a crime.” Colo. Jury Instr. 17:4. Mr. Moses-El’s Amended Complaint (# 47) alleges
that Mr. Huff destroyed blood and semen samples from the 1987 rape despite the label on the
samples directing that they be preserved. As to Dr. Brown, the Complaint alleges that Dr.
Brown’s testimony that blood tests were “inconclusive” in determining the identity of the
perpetrator when, the results were 93% likely to exclude Mr. Moses-El as a suspect.
This Court found that these allegations were insufficient to carry Mr. Moses-El’s burden
to allege these Defendants’ malicious state of mind. As the Court explained, the plausibility
standard is not satisfied where a plaintiff pleads facts that are consistent with “a wide swath of
conduct, much of it innocent.” Thus, the Court found that Mr. Moses-El was obligated to plead
facts that also dispelled the possibility that Mr. Huff and Dr. Brown’s acted without a malicious
state of mind. In other words, if Mr. Moses-El’s allegations described actions that could easily
be explained by mere negligence, his allegations would fail to “nudge[ his] claims across the line
from conceivable to plausible.” Khalik, 671 F.3d at 1191. Finding the allegations insufficient,
the Court dismissed Mr. Moses-El’s claims against Mr. Huff and Dr. Brown.
Mr. Moses-El argues that the Court failed to give due regard to the inference of malice
that can be drawn from Mr. Huff’s destruction of evidence that was labeled for preservation, or
Dr. Brown’s characterization of a 93% chance of exculpation as “inconclusive.” Upon

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reflection, the opinion of this Court remains the same. It is possible to infer from the alleged
facts that Mr. Huff and Dr. Brown acted maliciously, but such inference is only one of many that
could be drawn from their alleged acts, and such an inference requires the Court to assume many
additional facts that Mr. Moses-El has not pled. That is because there are no factual allegations
that suggest Mr. Huff’s or Dr. Brown’s state of mind – only what they did. So for example, mere
destruction of labeled evidence does not directly speak to Mr. Huff’s motive – he could have
been sloppy, not read the label, destroyed it with other materials. There are no factual
allegations that suggest that Mr. Huff targeted the destruction of this particular evidence or
harbored some personal animus against Mr. Moses-El, or destroyed the evidence with the
specific purpose of flustering Mr. Moses-El’s attempts to prove his innocence. For example,
had Mr. Moses-El alleged that Mr. Huff read the label on the evidence directing its preservation,
yet nevertheless destroyed it after having done so, or that he requested instructions as to
destruction of the evidence and disobeyed them, or he searched through all of the evidence and
destroyed only this, or that he told someone that he intended to destroy the pertinent evidence,
the outcome might be different. In other words, Mr. Moses-El’s facts can describe “a wide swath
of conduct, much of it innocent” and permit the court to “infer [nothing] more than the mere
possibility of misconduct.” 1

Indeed, Mr. Moses-El’s Amended Complaint appears to make clear that he believes that
“Defendant Huff did not look at the ‘comments’ section of the invoice from Technician
Cubbard” that instructed that the samples be retained. Docket # 47, ¶ 160. Such an allegation
would support an inference of negligence by Mr. Huff, but not malice. To the extent Mr. MosesEl contends that this contention simply reflects Mr. Huff’s testimony, ¶ 160, and that such
testimony should be rejected as incredible, Mr. Moses-El has not pointed to any facts that would
permit a conclusion that Mr. Huff’s testimony about not reading the “comments” section of the
memo was false.
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The same is true of the allegation about Dr. Brown’s testimony. Dr. Brown’s testimony
was given under oath, and therefore is presumed to be true. It is possible that the testimony was
not true, but there is nothing alleged that suggests that was the case and that Dr. Brown
knowingly and purposefully gave false testimony. For example, had there been an allegation that
Dr. Brown’s testimony deviated from that given in other cases under similar circumstances, was
contrary to positions or protocols used in other cases, or testified in other cases that similar blood
test results were conclusively exculpatory, a possible inference might become more probable.2
Mr. Moses-El cites to several cases that, he contends, stand for the proposition that where
the facts a plaintiff alleges permit a range of possible inferences, those allegations are sufficient
if the inference the plaintiff seeks to draw is among them. But the cases he cites address a
different issue – the situation where the facts alleged lead to one or more plausible inferences.
In Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 280-81 (6th Cir. 2010), the question
presented was whether the plaintiff had adequately alleged that a large AF-50 motorcycle helmet
he purchased was defective. The plaintiff alleged that a federal agency had tested a large AF-50
helmet in 2000 and the helmet passed, but that the same agency tested a small AF-50 helmet in
2002 and the helmet failed. The trial court dismissed the claim, but the court of appeals
reversed. It explained that “[t]here are at least two legitimate ways to think about the
significance of the [ ] tests”: (i) that the size of the helmet (i.e. small vs. large) dictates whether

Mr. Moses-El’s conclusion that Dr. Brown misrepresented the results from the test is
based on, among other things, a the essential fact that Mr. Moses-El is a “strong secretor” of his
blood-type antigens. ¶ 101, 103. But Mr. Moses-El acknowledges that Dr. Brown never tested
him to determine whether he was a strong or weak secretor. ¶ 104. Thus, the inference that Dr.
Brown “misrepresented” the test results due to negligence is a powerful one. Conversely,
nothing whatsoever in the Amended Complaint suggests that Dr. Brown knew anything about
Mr. Moses-El, other than that he was the subject of certain forensic tests she was conducting;
certainly, nothing in the Amended Complaint permits an inference that she bore specific malice
towards him.
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the helmet is defective or not; or (ii) that a defect exists regardless of the helmet’s size and that
the later test simply revealed a defect in the helmets that the earlier test missed. Finding that
“either assessment is plausible,” the Court of Appeals concluded that the trial court was therefore
bound to adopt the inference that was more favorable to the plaintiff – that the later test revealed
a defect that can be inferred to be present in any size helmet. 628 F.3d at 280-81.
Fabian does not advance Mr. Moses-El’s argument because the Court of Appeals in
Fabian identified multiple plausible inferences that could be drawn from the facts alleged. For
example, the court noted that “common sense tells us that a mass-manufactured consume
product, whether it is shoes, pants or helmets, may utilize the same design (and carry the same
flaw) regardless of size,” suggesting that the conclusion that helmet size dictated the existence of
a defect was an inference that could be dispelled. It noted that “the same test conducted on two
randomly selected helmets (otherwise exactly the same) might yield different outcomes due to
nothing more than natural statistical variances,” suggesting that the 2000 test might not
conclusively prove the absence of any defective design or manufacture. It contemplated the
possibility that “the company may have changed its design or manufacturing process for all AF50s between 2000 and 2002, . . . negating the relevance of a successful 2000 test result.”
Because all of these inferences could be drawn directly from the facts alleged – a successful
2000 test on a large helmet and an unsuccessful 2002 test on a small helmet – the court properly
concluded that the plaintiff’s allegations presented a plausible, not merely possible, claim. 628
F.3d at 281.3

Mr. Moses-El also cites Hamilton v. Palm, 621 F.3d 816 (8th Cir. 2010), where the
question presented was whether the plaintiff’s simple allegation that he was “employed” by the
defendants was sufficient to permit the inference that he was not an independent contractor. The
Eighth Circuit found (among other less-persuasive explanations) that the employer/independent
contractor dichotomy was fact-intensive and that the plaintiff had pled certain facts that favored
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But Mr. Moses-El’s allegations do not create any plausible inferences, only multiple
possible ones. Nothing in the mere fact that Mr. Huff destroyed blood samples that were labeled
for retention makes the inference that he did so with malice plausible. That is because nothing
speaks to Mr. Huff’s intent. It is equally likely that his actions were negligent or reckless. Any
inference that Mr. Huff destroyed the samples out of malice towards Mr. Moses-El would not be
based on anything other than sheer speculation. 4
Likewise, although Mr. Moses-El alleges that Dr. Brown misrepresented the conclusions
that could be drawn from her forensic testing, he does not allege any facts that would support the
inference that she did so out of a malice towards him and dispel the inference that she did so out
ignorance, mistake or as a result of negligence or carelessness. Without additional facts that
would permit the Court to dispel the possibility of negligence by Dr. Brown in favor of the
possibility of malice by Dr. Brown, the Court is left with nothing more than the “mere
possibility” that malice was afoot. Such possibility does not suffice to carry Mr. Moses-El’s
pleading burden under Iqbal.
Accordingly, Mr. Moses-El has not shown that the Court misapplied the controlling law
or that a failure to reconsider the Court’s prior Opinion and Order would amount to a manifest
injustice.
2. Substantive due process claim
the inference of employer stats, such as the fact that the defendants “provided unsafe tools” to
him and “directed” his work. Once again, then, Hamilton is a case in which the plaintiff alleged
facts that supported the inference the plaintiff wished to draw and dispelled competing contrary
inferences. As discussed herein, Mr. Moses-El has not alleged any facts that support his
inference that Mr. Huff and Dr. Brown acted with malice and dispel the competing inference that
they acted negligently or with some other lesser state of mind.
4
If anything, the Amended Complaint suggests that Mr. Huff was favorably disposed
towards Mr. Moses-El, as he had previously “express[ed] his doubts about the validity of [the
victim’s] identification of Mr. Moses-El.” ¶ 64.
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Mr. Moses-El contends that the Court inadequately considered his substantive due
process claim, which the Court understands to refer to Claim 6 in the Amended Complaint. That
claim alleges that each of the individual Defendants “engage[d] in one or more [ ] acts5 . . .
acting recklessly, knowingly, intentionally, willfully, and wantonly,” thereby ensuing that “Mr.
Moses-El’s prosecution and criminal trials lacked fundamental fairness to a degree that shocks
the universal sense of justice.” The Court summarily disposed of this claim, finding that “the
allegations in this claim appear to duplicate the allegations addressed” elsewhere in the Court’s
Opinion and Order, dismissing it “for the same reasons previously stated.”
In his motion, Mr. Moses-El argues that the analysis the Court invoked concerned a
malicious prosecution claim, and that the standards for such a claim differ from the analysis that
applies to a “fundamental fairness” claim. Mr. Moses-El states that his substantive due process
claims “deserve their own consideration.”
Unfortunately, the contours of Mr. Moses-El’s substantive due process claim are
somewhat unclear. In County of Sacramento v. Lewis, 523 U.S. 833, 845-49 (1997), the
Supreme Court explained that the substantive due process clause of the 14th Amendment is
generally understood to “protect[ ] the individual against arbitrary action of government” and to

Specifically: (i) Mr. Huff destroying DNA evidence that was supposed to be preserved;
(ii) “systematically withholding exculpatory evidence . . . regarding the true perpetrator,”
although it is not entirely clear what evidence this is and what defendants allegedly withheld it;
(iii) “systematically manufacturing inculpatory evidence,” which apparently refers to allegations
that Mr. Collins and Ms. Benedetti induced a witness to fabricate a recollection of the victim
identifying Mr. Moses-El for use in Mr. Moses-El’s second trial; (iv) refusing to investigate
alternative suspects; (v) Dr. Brown misleading prosecutors about the results of forensic testing;
(vi) “attempting . . . to deny Mr. Moses-El access to potential judicial remedies based on” the
destruction of the DNA evidence, although it is unclear what defendants did so and how; (vii)
“conspiring to fabricate probable cause to prosecute Mr. Moses-El . . . despite the great weight
of evidence pointing to his innocence”; (viii) failing to train and supervise “to prevent the above
constitutional violations”; and (ix) failing to establish policies to prevent the above constitutional
violations.
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check conduct that is “arbitrary, or conscience shocking, in a constitutional sense.” Lewis also
makes clear that a substantive due process claim “does not purport to supplant traditional tort law
in laying down rules of conduct,” and thus, courts “reject[ ] the lowest common denominator of
customary tort liability” – such as negligence (which is “categorically beneath the threshold of
constitutional due process”) – “as any mark of sufficiently shocking conduct.” 523 U.S. at 84849. Rather, a substantive due process claim requires allegations of “behavior at the other end of
the culpability spectrum[:] conduct intended to injure in some way unjustifiable by any
government interest.” Id. at 849.
In other words, a substantive due process claim requires allegations of a Defendant’s state
of mind at the level of maliciousness or wantonness.6 As discussed above, Mr. Moses-El’s
allegations supporting his malicious prosecution claims do not rise to that level, as he has not
sufficiently pled facts (c.f. conclusions) that point to anything more than negligence on the part
of Defendants such as Mr. Huff and Dr. Brown. And the Court has previously found (and
continues to find) that Mr. Moses-El has offered nothing but speculation as to whether Mr.
Carroll and Ms. Benedetti induced a witness to testify falsely. As to Mr. Morrisey, the Amended
Complaint asserts, at most, that he decided to re-try Mr. Moses-El for the rape in 2017 even
though the evidence supporting such charge was scant (although presumably enough to satisfy a
probable cause inquiry7). Although this Court does not endorse prosecutors who bring serious
Lewis acknowledges the possibility that government actors whose “less than intentional
conduct, such as recklessness or gross negligence” present “closer calls” as to whether they
violate the substantive due process clause if that conduct is conscience-shocking. 523 U.S. at
849. This Court has ample doubt that the allegations in the Amended Complaint sufficiently
(i.e. non-conclusorily) describe a state of mind in any Defendant that would rise to an actionable
level.
6

See e.g. C.R.Cr.P. 7(a) (if charges are approved by a grand jury); C.R.S. § 16-5-301(1)(a)
(allowing a defendant to request a probable cause hearing if charges are brought by a felony
information or complaint).
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charges based on thin (but prima facie sufficient) evidence, the Court cannot say that such a
practice is so conscience-shocking as to give rise to substantive due process relief. Thus, the
Court finds that its prior dismissal of Mr. Moses-El’s substantive due process claims was
appropriate.

3. Monell claim
Mr. Moses-El argues that the Court erred in dismissing his Monell claim because the
Court incorrectly required him to plead a constitutionally-culpable state of mind for the unnamed
police officers and prosecutors that created the “systemic deficiencies” he alleges the City of
Denver enabled. Mr. Moses-El is correct that he is not required to allege a sufficient
constitutional claim against a particular individual defendant before Monell liability might attach
to Denver for “the combined acts or omissions of several employees.” Garcia v. Salt Lake
County, 768 F.2d 303, 310 (10th Cir. 1985). But as the Court further noted, regardless of the acts
of any individual employee(s), Mr. Moses-El had failed to adequately allege the essential
element of Denver’s knowledge that its evidence-handling procedures were constitutionallydeficient, much less that the specific policies that allowed the mistaken destruction of the
evidence in Mr. Moses-El’s case had occurred previously. Mr. Moses-El’s motion for
reconsideration identifies no error with regard to this portion of the Court’s analysis, and thus, no
further reconsideration of this claim is warranted.
4. Other claims
The Court has also carefully considered the remainder of Mr. Moses-El’s arguments: (i)
that the Court overlooked allegations in the Amended Complaint that supported Mr. Moses-El’s

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contention that Mr. Carroll and Ms. Benedetti induced a witness to testify falsely at Mr. MosesEl’s second criminal trial; (ii) that the Court erred in concluding that the malicious prosecution
claim against Mr. Morrissey failed because it alleged only that he engaged in “legislative
advocacy”; (iii) that the Court erred in not recognizing that the Amended Complaint alleged that
Mr. Huff engaged in malicious prosecution by harboring doubts about Mr. Moses-El’s guilt but
nevertheless proceeding to conduct an investigation that focused on Mr. Moses-El and ignored
other possible suspects; (iv) that the Court erred in dismissing Mr. Moses-El’s claim for civil
conspiracy; and (v) that the Court erred in concluding that Mr. Moses-El’s claims against Ms.
Kimbrough were frivolous. The Court finds these arguments to be without merit.
Accordingly, Mr. Moses-El’s Motion to Alter Judgment is denied.
B. Motion to Amend
As an alternative (or perhaps even supplement) to his request for reconsideration, Mr.
Moses-El seeks leave to amend his Amended Complaint, adding certain additional factual
contentions. Because the Court has already entered judgment in this case, Mr. Moses-El must
first show that the judgment should first be vacated under the Rule 59(e) or Rule 60(b) standards,
then show that leave to amend is warranted under Rule 15. Donelson v. United States, 730
Fed.Appx. 597, 603 (10th Cir. 2018), quoting The Tool Box, Inc. v. Ogden City Corp., 419 F.3d
1084, 1086-87 (10th Cir. 2005).
For the reasons noted above, Mr. Moses-El has not demonstrated that Rule 59(e) warrants
vacatur of the judgment against him. Mr. Moses-El’s motion to amend does not materially
supplement his Rule 59(e) arguments, and thus, the Court denies his motion to amend on the
grounds that he has not made a colorable showing under that rule.

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Nevertheless, even if the Court were to reach the question of whether leave to amend
should be granted under the Rule 15(a) standard, the Court would nevertheless deny Mr. MosesEl’s motion as futile. The new material Mr. Moses-El seeks to add to his Amended Complaint
consists of: (i) several additional allegations that Mr. Morrissey engaged in a written exchange
with a Denver Post reporter, disputing (falsely, Mr. Moses-El contends) facts in the newspaper’s
article about Mr. Moses-El’s case; (ii) additional allegations that support Mr. Moses-El’s
speculation that Mr. Carroll and Ms. Benedetti attempted to induce Mr. Jackson to recant his
confession a second time, although Mr. Jackson ultimately stood by his confession when
testifying in court; (iii) extensive additional allegations of false or misleading public statements
about Mr. Moses-El’s case made by Ms. Kimbrough as Spokesperson for the Denver District
Attorney’s Office (and the conclusory assertion that Ms. Kimbrough’s statements, ostensibly on
behalf of the D.A.’s Office, “caused the Denver D.A.’s Office to prosecute Mr. Moses-El despite
his innocence”); (iv) an allegation that attempts to support Mr. Moses-El’s speculation that Mr.
Carroll and Ms. Benedetti induced a witness to manufacture a false recollection of the victim
identifying Mr. Moses-El as her attacker; and (v) certain allegations derived from Mr. Carroll’s
personnel file attesting to his experience and accomplishments, which Mr. Moses-El alleges
demonstrate that his “aggressive determination in pursuing a case caused him to pursue
inappropriate means in furtherance of a prosecution rather than let the case be dismissed.”
None of these allegations, individually or in concert, would suffice to cure the specific
deficiencies discussed in this Court’s prior Opinion and Order. As the Court previously noted,
allegations that Mr. Morrisey or Ms. Kimbrough made false or misleading public statements are
utterly incapable of supporting a malicious prosecution or other constitutional claim by Mr.
Moses-El. Although they might be probative of a particular actor’s state of mind, public

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statements of this type simply do not cause a prosecution to occur.8 As to the allegations about
Mr. Carroll and Ms. Benedetti inducing Mr. Jackson to temporarily recant his confession, Mr.
Moses-El has not shown that such conduct prolonged his incarceration in any way, as Mr.
Jackson stood by his confession (and recanted his recantation) when he ultimately testified. Mr.
Moses-El’s new allegations regarding Mr. Carroll and Ms. Benedetti inducing a witness to
fabricate a recollection of the victim identifying Mr. Moses-El do not fundamentally change the
fact that Mr. Moses-El offers nothing more than sheer speculation that Mr. Carroll and Ms.
Benedetti, and not the witness himself, were the cause of the witness’ new recollection. And Mr.
Moses-El’s allegations derived from Mr. Carroll’s personnel file are entirely irrelevant.
Accordingly, Mr. Moses-El’s motion to amend is denied.
CONCLUSION
For the foregoing reasons, Mr. Moses-El’s Motion to Vacate Judgment (# 121) and
Motion to Amend (# 122) are DENIED.
Dated this 21st day of February, 2020.
BY THE COURT:

Marcia S. Krieger
Senior United States District Judge

At best, such statements might permit Mr. Moses-El to assert a defamation claim of some
sort against Mr. Morrisey or Ms. Kimbrough, but he has not done so.
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