West-Helmle v. Denver Distrct Attorneys Office et al
ORDER. The Court ORDERS as follows: Defendant Russell's motion to dismiss (ECF No. 62 ) is GRANTED; the DA Defendants' motion to dismiss (ECF No. 64 ) is GRANTED IN PART and DENIED IN PART; the City Defendants' motion to dismiss (ECF No. 65 ) is GRANTED; the partial motion to dismiss by Defendants University of Denver, Moffat, and Freeman (ECF No. 68 ) is GRANTED IN PART and DENIED IN PART; the magistrate judge's recommendation (ECF No. 84 ) is ACCEPTED AND ADOPTED AS MODIFIED by this order; the DA Defendants' objections (ECF No. 85 ) are SUSTAINED IN PART and OVERRULED IN PART; and Plaintiff's objections (ECF No. 86 ) are OVERRULED. By Judge Raymond P. Moore on September 9, 2020. (rvill, )
Case 1:19-cv-02304-RM-STV Document 90 Filed 09/09/20 USDC Colorado Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 1:19-cv-02304-RM-STV
DENVER DISTRICT ATTORNEY’S OFFICE,
DENVER COUNTY JUDICIARY,
UNIVERSITY OF DENVER,
MELISSA TROLLINGER ANNIS,
VIVA MOFFAT, and
This matter is before the Court on the recommendation of United States Magistrate Judge
Scott T. Varholak (ECF No. 84) to grant, for the most part, the four pending motions to dismiss
and thereby dismiss the bulk of Plaintiff’s claims in this case. Plaintiff and Defendants Denver
District Attorney’s Office, Heard, Washburn, and Dubois (“DA Defendants”) have filed limited
objections to the recommendation (ECF Nos. 85, 86). The DA Defendants and Defendants
Denver County Judiciary and Annis (“City Defendants”) have filed responses to Plaintiff’s
objections (ECF Nos. 87, 88).
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Pursuant to Fed. R. Civ. P. 72(b)(3), this Court reviews de novo any part of the
magistrate judge’s recommendation that is properly objected to. An objection is proper only if it
is sufficiently specific “to focus the district court’s attention on the factual and legal issues that
are truly in dispute.” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir.
1996). “In the absence of a timely objection, the district may review a magistrate’s report under
any standard it deems appropriate.” Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir.
In evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must accept as
true all well-pleaded factual allegations in the complaint, view those allegations in the light most
favorable to the plaintiff, and draw all reasonable inferences in the plaintiff’s favor. Brokers’
Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014); Mink v. Knox,
613 F.3d 995, 1000 (10th Cir. 2010). The complaint must allege a “plausible” right to relief.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 n.14 (2007); see also id. at 555 (“Factual
allegations must be enough to raise a right to relief above the speculative level.”). Conclusory
allegations are insufficient, Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009), and
courts “are not bound to accept as true a legal conclusion couched as a factual allegation,”
Twombly, 550 U.S. at 555 (quotation omitted).
Plaintiff proceeds pro se; thus, the Court construes his pleadings liberally. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). However, the Court cannot act as Plaintiff’s advocate.
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
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No party objected to the magistrate judge’s recitation of the relevant background
information, which the Court incorporates herein by reference. See 28 U.S.C. § 636(b)(1)(B);
Fed. R. Civ. P. 72(b). For present purposes, the Court briefly summarizes that Plaintiff’s
externship with the Denver District Attorney’s Office generally did not go well and that one low
point was when Defendant Annis, a magistrate judge, barred him from her courtroom.
In his second amended complaint, Plaintiff asserts twelve claims for relief. Adopting the
magistrate judge’s recommendation would leave only three: a retaliation claim under the
Americans with Disabilities Act (“ADA”) against Defendant Denver District Attorney’s Office,
a Rehabilitation Act claim against Defendant University of Denver, and a conspiracy claim
against Defendants Moffatt and Freeman. As the magistrate judge noted, Defendants have not
challenged the latter two claims in their motions to dismiss. (See ECF No. 84 at 15, 39.)
With respect to the findings and conclusions of the magistrate judge’s fifty-three-page
recommendation that no party objected to, the Court finds the magistrate judge’s analysis was
thorough and sound and discerns no material errors on the face of the record. The Court
modifies the recommendation in one respect, as stated below, but otherwise adopts it in its
Plaintiff raises three arguments as to why his claims against the City Defendants should
not be dismissed. First, he argues that his case is similar to Forrester v. White, 484 U.S. 219
(1988), where the Supreme Court held that a state court judge did not have absolute immunity
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from a damages suit under 42 U.S.C. § 1983 for his decision to demote and discharge a probation
officer. The Court reasoned that while judges enjoy absolute immunity for “truly judicial acts,”
such personnel decisions are administrative in nature, and they are not rendered “judicial” simply
because they are made by a judge. Id. at 227-29. On the other hand, the Court stated that “acting
to disbar an attorney as a sanction for contempt of court . . . does not become less judicial by
virtue of an allegation of malice or corruption of motive.” Id. at 227.
Plaintiff’s reliance on Forrester is misplaced. To begin with, he was neither hired nor
fired by Defendant Annis. Moreover, if acting to disbar an attorney is a judicial act under
Forrester, it is difficult to comprehend why acting to bar an extern from a courtroom would not
be. “Judges have an obligation to maintain control over the courthouse and over the conduct of
persons in the courthouse; the issuance of an order removing persons from the courthouse in the
interest of maintaining such control is an ordinary function performed by judges . . . .” Stevens v.
Osuna, 877 F.3d 1293, 1305 (11th Cir. 2017). Indeed, numerous courts have concluded that
judges perform judicial acts when they order individuals removed or bar them from their
courtrooms. See, e.g., id. at 1305-06 (listing cases); Cameron v. Seitz, 38 F.3d 264, 271 (6th Cir.
1994) (“A judge acts in his judicial capacity when he exercises control over his courtroom.”).
The Court finds that nothing in Forrester undermines Defendant Annis’ clear entitlement to
absolute judicial immunity in this case.
Second, Plaintiff argues that “the Court abused its discretion when cursorily dismissing
novel issues.” (ECF No. 86 at 6.) This argument does not meaningfully address any specific
aspect of the recommendation.
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Third, Plaintiff seems to argue that the magistrate judge should not have recommended
dismissing the claims against Defendant Denver County Judiciary merely because its employee,
Defendant Annis, is entitled to absolute judicial immunity. However, Plaintiff cites no specific
act performed by Defendant Denver County Judiciary for which it could be held liable and does
not meaningfully address any specific aspect of the recommendation.
Accordingly, the Court overrules Plaintiff’s objections to the recommendation and
accepts and adopts the recommendation in its entirety as it pertains to granting the City
Defendants’ motion to dismiss.
DA Defendants’ Objections
The DA Defendants argue that the magistrate judge erred by refusing to dismiss
Plaintiff’s ADA retaliation claim after finding that he had otherwise failed to state a claim under
the ADA or the Rehabilitation Act against the DA Defendants. However, the elements of an
ADA retaliation claim are different from those of an ADA discrimination claim. See Foster v.
Mountain Coal Co., LLC, 830 F.3d 1178, 1186 (10th Cir. 2016). “[T]o prosecute an ADA
retaliation claim, a plaintiff need not show that he suffers from an actual disability.” Id.
(quotation omitted). “Rather, on this point, the plaintiff need only show that he had a reasonable,
good-faith belief that he was disabled.” Id. Due to this difference between retaliation and
discrimination claims under the ADA, the magistrate judge’s determination that Plaintiff failed
to allege he was a qualified individual does not compel the conclusion that he failed to state an
ADA retaliation claim. Therefore, the DA Defendants’ have not shown that it was legally or
logically inconsistent for the magistrate judge to recommend dismissing the discrimination
claims but not the retaliation claim, and the objection is overruled with respect to this argument.
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The DA Defendants also argue that the magistrate judge erred by recommending that
Plaintiff’s state law tort claims should be dismissed without prejudice. The Court agrees. The
magistrate judge determined that Plaintiff failed to allege in his complaint compliance with the
Colorado Government Immunity Act (“CGIA”) and found that his efforts to comply (stated in
his response to the motions to dismiss) did not amount to substantial compliance with the CGIA
notice requirements. (ECF No. 84 at 28.) Under Colorado law, “if the plaintiff fails to plead
compliance and cannot cure this defect, Colorado courts dismiss the claims with prejudice.”
Aspen Orthopaedics & Sports Med., LLC v. Aspen Valley Hosp. Dist., 353 F.3d 832, 842 (10th
Cir. 2003). Therefore, the Court sustains the DA Defendants’ objection on this point and
modifies the recommendation to dismiss the state law tort claims with prejudice.
Accordingly, the Court ORDERS as follows:
Defendant Russell’s motion to dismiss (ECF No. 62) is GRANTED;
the DA Defendants’ motion to dismiss (ECF No. 64) is GRANTED IN PART and
DENIED IN PART;
the City Defendants’ motion to dismiss (ECF No. 65) is GRANTED;
the partial motion to dismiss by Defendants University of Denver, Moffat, and
Freeman (ECF No. 68) is GRANTED IN PART and DENIED IN PART;
the magistrate judge’s recommendation (ECF No. 84) is ACCEPTED AND
ADOPTED AS MODIFIED by this order;
the DA Defendants’ objections (ECF No. 85) are SUSTAINED IN PART and
OVERRULED IN PART; and
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Plaintiff’s objections (ECF No. 86) are OVERRULED.
DATED this 9th day of September, 2020.
BY THE COURT:
RAYMOND P. MOORE
United States District Judge
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