Diaz Deleon v. Linnemeyer et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-01494-RMR-KAS
BRANDON LEE DIAZ DELEON,
Plaintiff,
v.
AUGUST LINNEMEYER,
TIFFANY MIZELLE,
JESSICA LINNEMEYER-SCHLAGEL,
JOSEPH YANCY,
HANNAH BEVARD,
HALEY PHROPER,
SHANE WHITMORE,
JACOB A. STARKOVICH,
PEOPLE OF THE STATE OF COLORADO,
COUNTY OF KIT CARSON, COLORADO,
CITY OF BURLINGTON, COLORADO,
13TH JUDICIAL DISTRICT COURT, COLORADO,
STATE OF COLORADO PUBLIC DEFENDER OFFICE,
SUE CAMBELL,
BRIAN JOHNSON, Attorney Number 46182,
JUSTIN HEINLEIN,
MARTY GREEK,
ELIZABETH DELUCA,
BRITNEY LEWTON,
DEBORAH EURICH,
ADVANTAGE TREATMENT CENTER,
DOUGLAS CARRIGAN,
BRIAN LYNCH,
NOAH MERAZ,
ETHAN ICE, #42430,
COLORADO LEGAL DEFENSE GROUP,
LOGAN COUNTY, by and through its Board of County Commissioners,
BRETT POWELL, Logan County Sheriff,
LOGAN COUNTY JAIL,
JENNELYSE BRUNSTING,
DIANA VENTURA,
DIRECTOR OF COLORADO DEPARTMENT OF CORRECTIONS, and
WARDEN OF COLORADO TERRITORIAL CORRECTIONAL FACILITY,
Defendants.
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______________________________________________________________________
RECOMMENDATION AND ORDER OF THE UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on the following Motions:
(1) Defendants Shane Whitmore and City of Burlington’s Motion to Dismiss
Amended Complaint [#81] (“Burlington’s Motion”);
(2) Defendants Advantage Treatment Center, Douglas Carrigan, Brian Lynch, and
Noah Meraz’s Motion to Dismiss the Amended Complaint Pursuant to Fed.
R. Civ. P. 12(b)(6) [#83] (“Advantage Defendants’ Motion”);
(3) Defendants 	State 	of 	Colorado, 	the 	Thirteenth 	Judicial 	District 	Court 	of
Colorado, the State of Colorado Public Defender’s Office, Brian Johnson, Justin
Haenlein1, Marty Greek, and Elizabeth DeLuca’s Motion to Dismiss the
Amended Complaint [#88] (“State Defendants’ Motion”);
(4) Defendants 	the 	Logan 	County, 	by 	and 	through 	its 	Board 	of 	County
Commissioners, Logan County Sheriff Brett Powell (official capacity), and the
Logan County Jail’s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)
[#94] (“Logan County Defendants’ Motion”); and
(5) Defendant Jacob A. Starkovich’s Motion to Dismiss [#100] (“Starkovich’s
Motion”).
Plaintiff, who proceeds in this matter as a pro se litigant,2 filed a combined Response
[#106] to all Motions to Dismiss [#81, #83, #88, #94, #100], and all Defendants filed a
Reply [#111, #117, #116, #110, #115, respectively]. The Motions have been referred to
the undersigned for a recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Federal
________________________
1 This defendant’s surname is misspelled on the caption as “Heinlein.” The correct spelling is
“Haenlein.” See State Defendants’ Motion [#88] at 1 n.1.
2 The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S.
519, 520-521 (1972). In doing so, the Court should neither be the pro se litigant’s advocate nor
“supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory
on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
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Rule of Civil Procedure 72(b)(1), and D.C.COLO.LCivR 72.1(c)(3). Orders Referring
Motions [#85, #89, #95, #101]. The Court has reviewed the briefs, the entire case file, and
the applicable law. Based on the following, the Court RECOMMENDS the Motions [#81,
#83, #88, #94, #100] be GRANTED.
I. 	Plaintiff’s Allegations
Plaintiff names 33 Defendants, and his allegations span five years. See generally
Am. Compl. [#75]. 	Although only seventeen Defendants move to dismiss, the Court
summarizes most of Plaintiff’s allegations, organized by relevant Defendant groups.
A. 	Defendants Tiffany Mizelle, City of Burlington Police Officer Kevin Whitmore,
August Linnemeyer, Joseph Yancy, and Hannah Bevard
On November 16, 2017, Defendant Mizelle contacted Defendant Officer Whitmore
to report that on July 24, 2017, Plaintiff sexually assaulted her minor daughter, Defendant
August Linnemeyer. Am. Compl. [#75] at 10. Mizelle, who lived in Nebraska, explained
that her family vacationed in Burlington, Colorado, during the summer of 2017. Id. at 11.
Around July 24, 2017, Linnemeyer told Mizelle that she and Plaintiff had kissed in the
backyard that night. Id. But on November 16, 2017, Linnemeyer stated that she and
Plaintiff had sex in the backyard on July 24, 2017. Id. Linnemeyer explained that she had
been drinking, recalled Plaintiff on top of her, and that when she woke up, she “believed
she had bruises on her legs,” and Plaintiff was gone. Id. at 12.
Officer Whitmore interviewed Linnemeyer, who reported that she met Plaintiff at
the Kit Carson County Fair that summer, began communicating on Snapchat, and a few
weeks later, waited for her mother and brother to fall asleep before asking Plaintiff to come
to her house. Id. at 13. Plaintiff arrived with a friend and two bottles of liquor. Id. Plaintiff
and Linnemeyer walked to the side of the backyard and consumed both bottles. Id. She
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recalled seeing the empty bottles in the trash the next day. Id. Linnemeyer stated that
Plaintiff told her to lie on the grass, pushed her shoulders down until she complied,
removed his shirt, climbed on top of her, and removed his pants. Id. She nudged him to
get off, but after he removed her sweatpants and underwear, she “just let it happen.” Id.
When they heard the garage door open, Plaintiff put on his pants and ran with his
friend to their truck. Id. at 14. Linnemeyer redressed before her brother, Joseph Yancy,
came outside. Id. He later took her tablet and saw her chats with Plaintiff. Id. Two days
later, she told her brother and his fiancée, Hannah Bevard, about the events. Id. Officer
Whitmore interviewed Bevard, who stated that Linnemeyer never reported the events to
her. Id.
On January 7, 2018, Whitmore met with Yancy, who reported seeing his sister in
the backyard around 2:00 or 3:00 a.m. on July 24, 2017, heard someone at the fence but
saw no one, and later discovered Linnemeyer’s Snapchat messages with Plaintiff. Id. at
15. Yancy stated that he waited two days before telling his mother. Id.
B. 	Defendants Jacob A. Starkovitch, Elizabeth DeLuca, Deborah Eurich, and
Britney Lewton
On January 22, 2018, Plaintiff was charged with felony sexual assault, sexual
assault on a child, and contributing to the delinquency of a minor. Id. at 16. Plaintiff
retained Defendant Starkovich, who pressured him to plead guilty. Id. On June 11, 2018,
Plaintiff entered a plea agreement, pleading guilty to attempted sexual assault and
unlawful sexual contact in exchange for a four-year deferred judgment. Id. Upon
completing probation, Plaintiff could withdraw his guilty plea, the court would vacate his
convictions, dismiss the charges, and expunge his record. Id. at 17. The court sentenced
Plaintiff accordingly on November 13, 2018. Id.
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Within days, the State and Defendant DeLuca moved to add conditions to Plaintiff’s
probation. Id. Starkovich took no action, and the court granted the motion. Id. The court
placed Plaintiff in sex-offender therapy at First Step Recovery. Id. Because Plaintiff
maintained 	his 	innocence, 	the 	program 	deemed 	him 	“in 	denial” 	and 	therefore
noncompliant with probation. Id. Defendants DeLuca, Eurich, and Lewton then petitioned
the 	court 	to 	place 	Plaintiff 	under 	restrictive 	supervision 	at 	Defendant 	Community
Corrections Advantage Treatment Center (“Advantage Treatment Center”). Id. Plaintiff
was arrested, and Starkovich subsequently withdrew from the case. Id. at 18.
C. 	Defendants Public Defender Brian Johnson, Advantage Treatment Center,
Douglas Carrigan, Noah Meraz, Bryan Lynch, and State District Judge Justin
Haenlein
On January 6, 2019, Defendant Public Defender Johnson entered an appearance
on Plaintiff’s behalf. Id.3 The court vacated the original deferred judgment and sentenced
Plaintiff to four years’ confinement at Advantage Treatment Center and two years in the
county jail. Id. Plaintiff entered Advantage Treatment Center on July 18, 2019, having
served 50 days of pre-sentence confinement. Id.
According to Plaintiff, on January 3, 2022, Defendants Carrigan, Meraz, and Lynch,
owner and employees, respectively, of Advantage Treatment Center, wrote a letter to the
state court stating that Plaintiff had served 894 days without incident, earned 229 days of
good time credit, and requesting the court transfer him to prison for the remainder of his
sentence. Id. On January 12, 2022, Defendant Judge Haenlein issued an order directing
Plaintiff to serve four years in the Colorado Department of Corrections, followed by two
________________________
3 Although Plaintiff states that Defendant Johnson entered his appearance on January 6, 2018,
Am. Compl. [#75] at 18, the context shows the correct date is January 6, 2019. Id. at 17–18.
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years’ mandatory parole. Id. Plaintiff attempted to object, arguing he had already served
more than his full sentence. Id. at 19. Judge Haenlein, Carrigan, Meraz, and Lynch
disregarded his objection, and Plaintiff was transferred to prison. Id.
On February 27, 2022, Plaintiff filed a petition for a writ of habeas corpus, asserting
the state had illegally incarcerated him because he already served his full sentence. Id.
On April 20, 2022, the state court held a hearing on the petition. Id. The court ordered
Plaintiff released but required him to serve an additional two years on parole, “even
though he had served in excess of the statutory maximum sentence as of that date.” Id.
at 20.
D. 	Defendants Diana Ventura, Colorado Parole Officer Jennelyse Brunsting,
Logan County Jail, Logan County Sheriff’s Department, Logan County
Sheriff, and Marty Greek
Plaintiff’s 	ex-girlfriend, 	Defendant 	Ventura, 	conspired 	with 	Defendant 	Parole
Officer Brunsting to order Plaintiff to report to a parole office for a hearing. Id. Upon arrival,
Defendant Brunsting conducted an illegal search of Plaintiff’s vehicle, which he had
borrowed from his father, and seized his father’s cellphone and pocketknife. Id. Brunsting
then arrested Plaintiff for a parole violation. Id. During booking at the Logan County Jail,
Plaintiff informed Defendant Sheriff Powell that he was not supposed to be on parole, but
the Sheriff ignored his statements. Id. Defendants DeLuca and Greek prepared parole
revocation documents knowing Plaintiff was not supposed to be on parole. Id. at 22.
On May 24, 2022, Plaintiff’s counsel filed an emergency motion for immediate
release from custody, detailing his sentence(s) and time served. Id. at 21. On June 22,
2022, Judge Haenlein granted the motion, finding Plaintiff had completed his entire
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sentence by the date of his arrest, that the court had imposed an unlawful sentence, and
ordering Plaintiff’s immediate release without probation. Id.
Plaintiff brings this action under 42 U.S.C. § 1983, asserting six claims against
Defendants. 	Am. 	Compl. 	[#75] 	at 	23–26. 	The 	claims 	are: 	(1) 	false 	arrest/false
imprisonment; (2) malicious prosecution; (3) fabrication of evidence; (4) conspiracy; (5)
municipal liability; and (6) excessive confinement. Id. He asserts the first four claims
against all Defendants, the fifth claim against Defendant City of Burlington, and the sixth
claim against Defendants Judge Haelein, Carrigan, Lynch, Meraz, Logan County Jail,
Logan County Sheriff Powell, and Logan County. Id. at 20-21, 23-28. Plaintiff seeks more
than $10,000,000 in compensatory, punitive, and nominal damages. Id. at 29.4
II. 	Legal Standards
A. 	Federal Rule of Civil Procedure 12(b)(1)
“To survive a 12(b)(1) motion to dismiss, a plaintiff must demonstrate that the court
has subject-matter jurisdiction.” Audubon of Kan., Inc. v. U.S. Dep’t of Interior, 67 F.4th
1093, 1108 (10th Cir. 2023). In other words, “[a] Rule 12(b)(1) motion to dismiss only
requires the court to determine whether it has authority to adjudicate the matter.” Kenney
v. Helix TCS, Inc., 939 F.3d 1106, 1108 (10th Cir. 2019). “The party invoking federal
jurisdiction has the burden to establish that it is proper, and there is a presumption against
its existence.” Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir.
2014) (internal quotations omitted). Article III standing is a threshold question of subject
________________________
4 In his Response, Plaintiff references claims for injunctive and declaratory relief. Response [#106]
at 14. However, he did not request such relief in his Amended Complaint and cannot amend his
pleading through a response to a motion to dismiss. LeClear v. State Farm Mut. Auto. Ins. Co.,
No. 24-cv-01482-NYW-NRN, 2025 WL 843750, at *5 (D. Colo. Mar. 18, 2025).
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matter jurisdiction, which courts consider pursuant to Rule 12(b)(1). Kerr v. Polis, 20 F.4th
686, 692 (10th Cir. 2021).
“Rule 12(b)(1) challenges may take two different forms.” Graff v. Aberdeen
Enterprizes, II, Inc., 65 F.4th 500, 507 (10th Cir. 2023). “The moving party may (1) facially
attack the complaint’s allegations as to the existence of subject matter jurisdiction, or (2)
go beyond allegations contained in the complaint by presenting evidence to challenge the
factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs.,
Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (internal citation and quotation marks
omitted). “When resolving a facial attack on the allegations of subject matter jurisdiction,
a court must accept the allegations in the complaint as true.” Graff, 65 F.4th at 507.
However, a court is not “bound by conclusory allegations, unwarranted inferences, or
legal conclusions.” Turner v. United States, 501 F. App’x 840, 842 (10th Cir. 2012) (quoting
Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir. 1994)). Additionally, when “a party
attacks the factual basis for subject matter jurisdiction, the court may not presume the
truthfulness of the factual allegations in the complaint, but may consider evidence to
resolve disputed jurisdictional facts.” SK Fin. SA v. La Plata Cnty., Bd. of Cnty. Comm’rs,
126 F.3d 1272, 1275 (10th Cir. 1997).
B. 	Federal Rule of Civil Procedure 12(b)(6)
Rule 12(b)(6) permits dismissal of a claim where the plaintiff has “fail[ed] to state
a claim upon which relief can be granted.” The Rule 12(b)(6) standard tests “the
sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). “A complaint
must contain ‘enough facts to state a claim to relief that is plausible on its face.’” Santa
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Fe All. for Pub. Health & Safety v. City of Santa Fe, 993 F.3d 802, 811 (10th Cir. 2021)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “When the complaint
includes ‘well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.’” Carraway v. State
Farm & Cas. Co., No. 22-1370, 2023 WL 5374393, at *4 (10th Cir. Aug. 22, 2023) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
“A pleading that offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked
assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (internal
quotations and citation omitted). “[D]ismissal under Rule 12(b)(6) is appropriate if the
complaint alone is legally insufficient to state a claim.” Brokers’ Choice of Am., Inc. v. NBC
Universal, Inc., 861 F.3d 1081, 1104-05 (10th Cir. 2017). “The court’s function on a Rule
12(b)(6) motion is not to weigh potential evidence that the parties might present at trial[.]”
Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(citation omitted).
III. 	Analysis
A. 	False Arrest/Imprisonment (Claim 1)
Plaintiff asserts false arrest/imprisonment claims arising from his initial arrest and
prosecution.5 	Am. 	Compl. 	[#75] 	at 	23. 	Defendants 	argue 	Plaintiff’s 	false
arrest/imprisonment claims are time-barred. A “hodgepodge of state and federal law
governs the timeliness of claims under 42 U.S.C. § 1983.” Carbajal v. McCann, 808 F.
________________________
5 To the extent Plaintiff asserts excessive confinement claims arising from his January 12, 2022
sentencing and April 20, 2022 arrest, see Am. Compl. [#75] at 18-20, those claims are analyzed
separately herein.
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App’x 620, 633 (10th Cir. 2020) (citation omitted). Federal law determines when the claim
accrues and the limitations period begins to run, but the length of the limitations period
comes from the state personal-injury statute. Id. Colorado provides a two-year statute of
limitations for personal injury actions. COLO. REV . S TAT. § 13-80-102; Ullery v. Bradley,
949 F.3d 1282, 1288 (10th Cir. 2020). State law also governs tolling, subject to rare
equitable tolling under federal law. Carbajal, 808 F. App’x at 633.
A § 1983 claim for false arrest/imprisonment may give rise to two constitutional
claims: one under the Fourth Amendment and another under the Due Process Clause of
the Fourteenth Amendment. Mondragón v. Thompson, 519 F.3d 1078, 1082 (10th Cir.
2008). The Fourth Amendment claim covers the period between an unlawful arrest and
the institution of legal process. Id. “[L]egal process” occurs when a plaintiff is bound over
by a magistrate or arraigned on charges. Id. at 1083 (citing Wallace v. Kato, 549 U.S. 384,
389 (2007)). The claim accrues when the plaintiff is released or when legal process
begins. Id. The Fourteenth Amendment claim covers the period between the institution of
legal process and its favorable termination (e.g., acquittal, dismissal, or habeas relief). Id.
at 1083. Thus, it accrues upon favorable termination. Id.6
Plaintiff was charged on January 22, 2018, and formally entered guilty pleas on
June 11, 2018. Am. Compl. [#75] at 16. Accordingly, the statute of limitations for this claim
began to run in 2018 and expired two years later, in 2020. See Wallace, 549 U.S. at 397
(“We hold that the statute of limitations upon a § 1983 claim seeking damages for a false
arrest in violation of the Fourth Amendment, where the arrest is followed by criminal
________________________
6 As discussed in the following section, any Fourteenth Amendment false arrest/imprisonment
claim fails because Plaintiff’s criminal proceedings did not terminate in his favor.
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proceedings, begins to run at the time the claimant becomes detained pursuant to legal
process.”). Because Plaintiff did not file this lawsuit until 2024, see Compl. [#1], his Fourth
Amendment claim is time-barred.
Alternatively, a Fourth Amendment false arrest claim requires showing that the
arresting officer lacked probable cause. Bell v. City & Cnty. of Denver, No. 22-cv-01805-
RM-MEH, 2023 WL 11867011, at *5 (D. Colo. Mar. 16, 2023) (citing Virginia v. Moore, 553
U.S. 164, 171 (2008); Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012)). Plaintiff
entered guilty pleas to the charges, resulting in convictions. Am. Compl. [#75] at 16. “A
‘guilty plea establishes probable cause’ and ‘constitutes justification and is a complete
defense to an action for false arrest.’” Bell, 2023 WL 11867011, at *5 (quoting Guinn v.
Unknown Lakewood Police Officers, No. 10-cv-00827-WYD-CBS, 2010 WL 4740326, at
*6 (D. Colo. Sept. 30, 2010)) Thus, Plaintiff’s guilty pleas provide an independent basis to
dismiss his Fourth Amendment claims.
Accordingly, the Court recommends the Motions [#81, #83, #88, #100] be
granted 	and 	Plaintiff’s 	Fourth 	Amendment 	false 	arrest/imprisonment 	claims 	be
dismissed with prejudice. See Womble v. Salt Lake City Corp., 84 F. App’x 18, 21 (10th
Cir. 2003) (holding that a claim falling outside the applicable limitations period is
dismissed with prejudice).
B. 	Malicious Prosecution/Fabrication of Evidence (Claims 2 and 3)
Plaintiff next asserts Defendants initiated and continued criminal charges against
him with malice and for an improper purpose. Am. Compl. [#75] at 23. He further contends
that Defendants “fabricated, concealed, or destroyed evidence” supporting the charges,
including “false and misleading reports, affidavits, and testimony of the police officers and
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investigators,” “false and misleading forensic and medical evidence [about] which
Defendant Whitmore lied,” 	and “exculpatory 	and 	impeachment evidence that was
favorable to Plaintiff and . . . was withheld from him and his counsel.” Id. at 24.
Although 	Plaintiff 	asserts 	fabrication 	of 	evidence 	as 	a 	separate 	claim, 	his
allegations primarily support a single claim for malicious prosecution. A malicious
prosecution claim arises under § 1983 when officials “conspire to procure groundless
state indictments and charges based upon fabricated evidence or false, distorted,
perjurious testimony presented to official bodies in order to maliciously bring about a
citizen’s trial or conviction.” Winslow v. Romer, 759 F. Supp. 670, 675 (D. Colo. 1991)
(quoting Anthony v. Baker, 767 F.2d 657, 662 (10th Cir. 1985)). Here, Plaintiff seeks relief
under the Fourth and Fourteenth Amendments. See Am. Compl. [#75] at 23. However, to
the extent Plaintiff seeks remedies under the Fourteenth Amendment for deprivations of
liberty without due process, his claim must fail because a state tort claim for malicious
prosecution is the “effective antidote.” Lewandowski v. City of Longmont, No. 23-CV-
01897-PAB-NRN, 2024 WL 6475773, at *5 (D. Colo. Aug. 7, 2024) (considering the
plaintiff’s malicious prosecution claim only under the Fourth Amendment) (quoting Myers
v. Koopman, 738 F.3d 1190, 1193 (10th Cir. 2013)), report and recommendation adopted,
2024 WL 6475770 (D. Colo. Aug. 27, 2024). Therefore, the Court will only consider
Plaintiff’s claim through a Fourth Amendment lens.
The elements of a Fourth Amendment malicious prosecution claim are “(1) the
defendant caused the plaintiff’s continued confinement or prosecution; (2) the original
action terminated in favor of the plaintiff; (3) no probable cause supported the arrest,
confinement, or prosecution; (4) the defendant acted maliciously; and (5) the plaintiff
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sustained damages.” Shrum v. Cooke, 60 F.4th 1304, 1310 (10th Cir. 2023) (emphasis in
the original); see also Thompson v. Clark, 596 U.S. 36, 39 (2022) (explaining that to
maintain a malicious prosecution claim under § 1983, a plaintiff “must demonstrate,
among other things, that he obtained a favorable termination of the underlying criminal
prosecution”) (emphasis omitted). A prosecution terminates favorably for these purposes
when it ends without a conviction. Id. at 49 (explaining that a plaintiff need not show “that
the criminal prosecution ended with some affirmative indication of innocence”; rather, he
“need only show that the criminal prosecution ended without a conviction”).7
Case law establishing that a malicious prosecution claim requires favorable
termination of the underlying prosecution derives from Heck v. Humphrey, 512 U.S. 477
(1994). See Thompson, 596 U.S. at 39 (relying on Heck). In Heck, the Supreme Court
held that “in order to recover damages for [an] allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or called into question
by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck, 512
U.S. at 486-87 (footnote omitted).
Although neither the City of Burlington Defendants nor the State Defendants cite
specifically to Heck in their Motions [#81, #88], Plaintiff recognizes the underlying basis
________________________
7 On this point, the State Defendants cite outdated and abrogated case law, Margheim v. Buljko,
855 F.3d 1077, 1085 (10th Cir. 2010), for the proposition that a favorable termination must indicate
the innocence of the accused. See State Defs.’ Motion [#88] at 11. This was abrogated by the
Supreme Court’s 2022 Thompson decision.
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for their arguments and asserts that Heck mandates “a stay or dismissal without
prejudice—not a merits dismissal with prejudice.” Response [#106] at 3. In Reply,
Defendants Whitmore and City of Burlington state that they did not rely on Heck because
it is “inapplicable to this case because Plaintiff is no longer incarcerated and has no
available habeas remedy.” Reply [#111] at 3 n.1 (citing Cohen v. Longshore, 621 F.3d
1311, 1317 (10th Cir. 2010)). In Cohen, the Tenth Circuit held that a “petitioner who has
no available remedy in habeas, through no lack of diligence on his part, is not barred by
Heck from pursuing a § 1983 claim.” Id. at 1317 (emphasis added).
The Tenth Circuit has clarified that the Cohen exception applies only when a
plaintiff’s inability to obtain habeas relief “is not due to [his] own lack of diligence.” Carbajal
v. Hotsenpiller, 524 F. App’x 425, 428 (10th Cir. 2013) (internal quotations omitted). In
Carbajal, the court barred a § 1983 claim under Heck despite the plaintiff no longer being
in custody, reasoning that the plaintiff lacked diligence because he waited a decade to
challenge claims he knew of in 2000. Id.; see also Clingerman v. City of Wichita, No. 23-
2435-JWB, 2025 WL 958257, at *4 (D. Kan. Mar. 31, 2025) (holding the Cohen exception
inapplicable where the plaintiff forfeited § 1983 claims through lack of due diligence in
seeking appellate or habeas relief).
Here, Plaintiff’s criminal proceedings resulted in convictions for attempted sexual
assault and unlawful sexual contact. Am. Compl. [#75] at 16. He does not allege these
convictions were overturned or vacated. Significant to the Cohen exception, Plaintiff does
not indicate he sought appellate review or habeas relief regarding his convictions.
Although Defendants attempt to disavow the Heck basis for dismissal, “when a party
presents an argument, [the court is not] constrained by the parties’ legal theories.” United
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States v. Spradley, 146 F.4th 949, 958 (10th Cir. 2025) (citing Kamen v. Kemper Fin.
Servs., Inc., 500 U.S. 90, 99 (1991) (“When an issue or claim is properly before the court,
the court . . . retains the independent power to identify and apply the proper construction
of governing law.”)).
Accordingly, the Court recommends the Motions [#81, #83, #88, #100] be
granted 	and 	Plaintiff’s 	malicious 	prosecution/fabrication 	of 	evidence 	claims 	be
dismissed without prejudice. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010)
(“[O]rdinarily the dismissal of a pro se claim under Rule 12(b)(6) should be without
prejudice[.]”).
C. 	Conspiracy (Claim 4)
Plaintiff also alleges Defendants “conspired among themselves and with others to
deprive him of his constitutional rights.” Am. Compl. [#75] at 24. A conspiracy claim does
not stand alone. Bledsoe v. Carreno, 53 F.4th 589, 609 (10th Cir. 2022). It requires “an
underlying constitutional deprivation” for which “a plaintiff may be able to impose liability
on one defendant for the actions of another performed in the course of the conspiracy.”
Id. (internal quotation and citation omitted). Here, the Court concluded Plaintiff has not
alleged an actionable violation of federally protected rights. Without a valid underlying
constitutional claim, Plaintiff cannot maintain a conspiracy claim. Thompson v. City of
Lawrence, 58 F.3d 1511, 1517 (10th Cir. 1995) (“In order to succeed on [a § 1983
conspiracy] claim,” the plaintiff “must prove both the existence of a conspiracy and the
deprivation of a constitutional right.”).
Presuming Plaintiff had alleged an underlying constitutional violation, conclusory
claims of conspiracy cannot survive. Frasier v. Evans, 992 F.3d 1003, 1025 (10th Cir.
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2021). To state a § 1983 conspiracy claim, a plaintiff must allege “at least a combination
of two or more persons acting in concert and an allegation of a meeting of the minds, an
agreement among the defendants, or a general conspiratorial objective.” Id. at 1024
(quoting Brooks v. Gaenzle, 614 F.3d 1213, 1227-28 (10th Cir. 2010), abrogated on other
grounds by Torres v. Madrid, 592 U.S. 306 (2021)). A plaintiff must also “make clear
exactly who is alleged to have done what to whom, to provide each individual with fair
notice as to the basis of the claims against him or her, as distinguished from collective
allegations against the state.” Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008).
Plaintiff’s allegations that Defendants “conspired . . . to deprive him of his
constitutional rights,” “had a meeting of the minds . . to commit the unlawful acts,” and
“acted in concert and pursuant to their common plan,” Am. Compl. [#75] at 24-25, are
merely recitation of conspiracy claim elements. Plaintiff does not identify any specific
communication, agreement, cooperation, or concerted action from which the Court could
infer a conspiracy among Defendants. See Durre v. Dempsey, 869 F.2d 543, 545 (10th
Cir. 1989) (affirming dismissal where plaintiff did not allege specific facts showing
agreement or concerted action). Plaintiff’s conclusory allegations are insufficient to state
a § 1983 conspiracy claim.
Accordingly, the Court recommends the Motions [#81, #83, #88, #100] be
granted and Plaintiff’s conspiracy claim be dismissed without prejudice. Gee, 627 F.3d at
1186.
D. 	Municipal Liability (Claim 5)
Plaintiff also asserts a claim for municipal liability against the City of Burlington,
alleging that it, among other things, failed to train, supervise, discipline, and control its
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police officers, investigators, and prosecutors in performing their duties. Am. Compl. [#75]
at 25. Like his conspiracy claim, Plaintiff’s municipal liability claim fails because the Court
has already determined his allegations do not establish a constitutional violation. “A
municipality may not be held liable where there was no underlying constitutional violation
by any of its officers.” Johnson v. City of Cheyenne, 99 F.4th 1206, 1233 (10th Cir. 2024).
The Court’s finding that Plaintiff has failed to assert a viable constitutional claim against
Officer Whitmore precludes imposing liability on the City of Burlington.
Accordingly, the Court recommends the Motion [#81] be granted and Plaintiff’s
municipal liability claim against City of Burlington be dismissed without prejudice. Gee,
627 F.3d at 1186.
E. 	Excessive Confinement (Claim 6)
Plaintiff brings an overdetention claim against Advantage Treatment Center,
Carrigan, Lynch, Meraz, Logan County Jail, Logan County Sheriff Powell, and Logan
County alleging they confined him beyond the lawful maximum for his crimes. Am. Compl.
[#75] at 20-21, 26–28. An overdetention claim arises when a defendant detains a plaintiff
longer than the law permits, either because the sentence has expired or for other reasons.
Dodds v. Richardson, 614 F.3d 1185, 1192 (10th Cir. 2010).
Plaintiff alleges that on January 3, 2022, Defendants Carrigan, Lynch, and Meraz
sent a letter to the state court requesting that he be sent to prison for the remainder of his
sentence and stating that he had served 894 days without issue and earned 229 days of
good time while at Advantage Treatment Center. Am. Compl. [#75] at 18. The letter,
however, contradicts Plaintiff’s characterization. Therein, Defendants reported Plaintiff
repeatedly violated program rules, accumulated thirteen major write-ups, and failed to
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comply with program requirements. ATC Correspondence [#83-1]. As a result, Advantage
Treatment Center removed Plaintiff from the program and recommended only that he
complete the remainder of his sentence in the Colorado Department of Corrections,
including mandatory parole. Id.8
Plaintiff also asserts this claim against Defendant Sheriff Powell, in his individual
capacity, alleging that Sheriff Powell ignored Plaintiff’s assertion that he was not lawfully
on parole and therefore improperly confined for a parole violation. Am. Compl. [#75] at 9,
20-21.9
In Moya v. Garcia, 895 F.3d 1229, 1232 n.1 (10th Cir. 2018), the plaintiffs were
detained for more than 30 days without arraignment, in violation of New Mexico’s fifteen-
day statutory requirement, sued the sheriff and jail warden for overdetention. Moya, 895
F.3d at 1231. The Tenth Circuit rejected the claims, holding the defendants did not cause
the overdetention because only the state trial court could schedule arraignments. Id. at
1234. Even if the defendants could have monitored deadlines or requested arraignments,
the court reasoned, they lacked authority to secure earlier judicial action. Id. (citing Estate
of Brooks ex rel. Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999)).
The same principle controls here. Plaintiff does not plausibly allege Defendants
caused his overdetention. The January 3, 2022 letter recounted Plaintiff’s original four-
year sentence to Advantage Treatment Center, his entry into the program on July 18,
________________________
8 “Courts are permitted to review documents referred to in the complaint if the documents are
central to the plaintiff’s claim and the parties do not dispute the documents authenticity.’” McNellis
v. Douglas Cnty. Sch. Dist., 116 F.4th 1122, 1129 (10th Cir. 2024) (citation and internal quotations
omitted).
9 The Court addresses Plaintiff’s claims against Logan County Jail, Logan County, and Sheriff
Powell in his official capacity below.
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2019, and the time he had served, including earned time. ATC Correspondence [#83-1].
After Plaintiff’s removal from the program, the Defendants Carrigan and Lynch on behalf
of the Advantage Treatment Center recommended only that he serve the remainder of his
existing sentence in the Colorado Department of Corrections. Id. They neither imposed
nor requested a new sentence, nor did they direct the court to resentence Plaintiff to an
additional four-year term. Id.
Similarly, Sheriff Powell did not cause Plaintiff’s alleged overdetention. Only the
court had authority to release Plaintiff. Even if Sheriff Powell credited Plaintiff’s assertions,
he lacked authority to do so. Because Plaintiff fails to allege facts showing that any of
these Defendants caused his alleged overdetention, the claim fails.
Accordingly, the Court recommends that the Motion [#83, #94] be granted and
Plaintiff's claim based on overdetention against Advantage Treatment Center, Carrigan,
Lynch, Meraz, and Sheriff Powell, in his individual capacity, be dismissed without
prejudice. Gee, 627 F.3d at 1186.
F. 	Colorado Enhance Law Enforcement Integrity Act (“ELEIA”) (Claim 3)
Construing Plaintiff’s Amended Complaint liberally, he also asserts claims under
Article II of the Colorado Constitution based on alleged fabrication of evidence. Am.
Compl. [#75] at 24. Colorado’s ELEIA, Colo. Rev. Stat. § 13-21-131, is Plaintiff’s only
avenue for such claims. “Colorado enacted ELEIA in 2020 to create a cause of action for
individuals whose rights are secured by Article II of the Colorado Constitution . . . and
subsequently violated by a peace officer.” Shash v. City of Pueblo, 770 F. Supp. 3d 1279,
1306 (D. Colo. 2025) (citing COLO. REV . S TAT. § 13-21-131). ELEIA allows suit against a
peace officer who “subjects or causes to be subjected, including failing to intervene, any
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other person to the deprivation of any individual rights” secured by Article II. Id. (quoting
§ 13-21-131(1)). Plaintiff appears to assert this claim against Defendant Whitmore. Am.
Compl. [#75] at 24.
Officer Whitmore began investigating the allegations underlying Plaintiff’s criminal
convictions on November 16, 2017, when Mizelle initially reported Plaintiff’s alleged
assault of her daughter. Am. Compl. [#75] at 12. Plaintiff entered guilty pleas on June 11,
2018, and the court sentenced him on November 13, 2018. Id. at 16-17. Beyond these
dates, Plaintiff’s allegations do not implicate Officer Whitmore.
ELEIA “went into ‘effect upon passage’” on June 19, 2020. Est. of Thakuri v. City
of Westminster, No. 19-cv-02412-DDD-KAS, 2024 WL 1152565, at *2 (D. Colo. Mar. 14,
2024) 	(quoting 	Colo. 	Rev. 	Stat. 	§ 	13-21-131). 	Courts 	presume 	statutes 	operate
prospectively unless the legislature clearly indicates otherwise. Id. (citing In re Est. of
DeWitt, 54 P.3d 849, 854 (Colo. 2002)). The Colorado Court of Appeals has held that
§ 13-21-131 applies prospectively. Casper v. Olson, No. 21CA0075, 2022 WL 22924503,
at *6 (Colo. App. Apr. 7, 2022). Nothing in the language or structure of ELEIA indicates
the General Assembly intended it to operate retroactively. Id.
Because the events underlying Plaintiff’s ELEIA claims occurred in 2017 and 2018,
before the statute became effective, his claim fails as a matter of law. Cf. Est. of Thakuri,
2024 WL 1152565, at *3 (denying leave to amend to add ELEIA claim where underlying
events occurred before its passage date). This holds true whether Plaintiff’s ELEIA claim
is solely directed at Defendant Whitmore or to any of the other Defendants who are
alleged to have fabricated evidence to support his sex assault conviction.
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Accordingly, the Court recommends the Motion [#81] be granted and Plaintiff’s
ELEIA claim be dismissed with prejudice. See Knight v. Mooring Cap. Fund, LLC, 749
F.3d 1180, 1190 (10th Cir. 2014) (“[A] dismissal with prejudice is appropriate where a
complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would
be futile.”).
G. 	Legal Malpractice
Plaintiff 	contends 	Defendants 	Starkovitch 	and 	Johnson 	committed 	legal
malpractice during his 2018 and 2019 criminal proceedings, respectively. Am. Compl.
[#75] at 8, 17.
Regarding Starkovitch, Plaintiff alleges three instances of malpractice. First,
Starkovitch coerced him into pleading guilty. Id. at 16. Second, he failed to object to
additional probation conditions the State added after Plaintiff entered a plea deal. Id. at
17. Third, following Plaintiff’s second arrest in late 2018 or early 2019, Starkovitch
withdrew, “leaving Plaintiff with no attorney.” Id. at 18. All events occurred in 2018 or early
2019. Id. at 16-18.
Regarding Johnson, Plaintiff asserts that he was appointed on January 6, 2019.
Id. at 18. Plaintiff alleges Johnson failed to appear, and the court vacated his deferred
judgment. Id. Although Plaintiff does not specify the date, pursuant to the court’s ruling,
he entered Advantage Treatment Center on July 18, 2019. Id. Thus, Johnson’s failure to
appear occurred before that date.
In support of dismissal, Defendant Starkovich raises various arguments, including
that the Court should decline to exercise supplemental jurisdiction over Plaintiff’s state
law-based legal malpractice claim because the claim “does not share a common nucleus
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of operative fact with the federal civil rights claims[.]” Starkovich Motion [#100] at 3-4.
Defendant Starkovich further argues that the claim is time-barred. Id. at 4-5. Defendant
Johnson also raises various arguments, including that the malpractice claim is time-
barred and that the Colorado Governmental Immunity Act bars the claim. State Defs.’
Motion [#116] at 4-5.
Colorado imposes a two-year statute of limitations on negligence claims, including
legal malpractice. Morrison v. Goff, 91 P.3d 1050, 1053 (Colo. 2004) (citing § 13-80-
102(1)). The period begins “on the date both the injury and its cause are known or should
have been known by the exercise of reasonable diligence.” Id. (quoting § 13–80–108(1)).
Plaintiff knew of all aspects of Starkovitch and Johnson’s representation to which he now
objects by 2019. Am. Compl. [#75] at 18. He filed this lawsuit on May 28, 2024, see
Compl. [#1], well beyond the limitations period.
In his Response, Plaintiff contends the claims are timely based on “Plaintiff’s May
25, 2022 discovery of the pertinent facts.” Response [#106] at 17. The Amended
Complaint identifies only one event near that date: the filing of an emergency motion for
immediate release following a parole arrest. Am. Compl. [#75] at 21. That motion,
asserting that Plaintiff had served his term and was entitled to release without parole,
does not relate to Starkovitch or Johnson’s 2018–2019 representation.
The Court need not address all arguments presented by Defendants Starkovich
and Johnson nor address whether Plaintiff’s claims are timely. Because the Court
recommends that all the federal claims be dismissed, it need not exercise supplemental
jurisdiction over Plaintiff’s legal malpractice claim. Plaintiff’s legal malpractice claim is not
intertwined with the claims over which the Court has original jurisdiction. The allegations
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against these two defendants do not accuse them of fabricating evidence, engaging in
conduct that purportedly caused baseless charges to be filed against him, or unlawfully
confining 	him. Plaintiff’s 	allegations, rather, concern 	strategic decisions 	these two
defendants allegedly made during their representation of him in his criminal case. See
Am. Compl. [#75] at 16-18.
However, even if Plaintiff’s legal malpractice claims “form part of the same case or
controversy” for the Court to exercise supplemental jurisdiction under 28 U.S.C. §
1367(a), the Court recommends that the District Judge decline to exercise supplemental
jurisdiction over this claim and dismiss without prejudice. If Plaintiff ultimately files suit
in state court, that court can determine whether Plaintiff’s legal malpractice claim is time-
barred. See Benton v. Herrera, No. 13-cv-02668-LTB, 2014 WL 5488949, at *2 (D. Colo.
Oct. 30, 2014) (declining to exercise supplemental jurisdiction over legal malpractice
claim and leaving timeliness issue to the state court).
H. 	Defendants State of Colorado, the Thirteenth Judicial District Court of
Colorado, the State Public Defender’s Office, Johnson, Haenlein, Greek, and
DeLuca
Defendants State of Colorado, the Thirteenth Judicial District Court, the State
Public Defender’s Office, Johnson, Haenlein, Greek, and DeLuca submit the following
alternative grounds for dismissal of Plaintiff’s claims.
1. 	Sovereign Immunity
Defendants State of Colorado, the Thirteenth Judicial District Court of Colorado,
the State Public Defender’s Office, Johnson, Haenlein, Greek, and DeLuca, in their official
capacities, argue that sovereign immunity bars Plaintiff’s claims. Motion [#88] at 2-4.
Sovereign immunity generally prevents citizens from suing a state in federal court. N. Ins.
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Co. of N.Y. v. Chatham Cnty., 547 U.S. 189, 193 (2006). This immunity covers the state,
its instrumentalities—including state agencies and judicial districts—and state officials
sued in their official capacities. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (treating claims
against government officers or employees in their official capacities as claims against the
government); Lessard v. Cravitz, 686 F. App’x 581, 586 (10th Cir. 2017) (finding that state
judicial districts in Colorado enjoy sovereign immunity, citing COLO. CONST. art. VI, § 1);
Snedeker v. Colorado, No. 1:23-cv-00178-CNS-SBP, 2024 WL 1383501, at *14 (D. Colo.
Feb. 29, 2024) (recognizing state public defender offices as state agencies entitled to
sovereign immunity), report and recommendation adopted, 2024 WL 1374957 (D. Colo.
Mar. 31, 2024), aff’d, No. 24-1173, 2025 WL 831345 (10th Cir. Mar. 17, 2025).
Congress can abrogate a state’s sovereign immunity through statute, or a state
can waive it through a “clear expression of its intent to waive.” Hunt v. Colo. Dep’t of Corr.,
271 F. App’x 778, 781 (10th Cir. 2008). The State of Colorado has not waived sovereign
immunity for § 1983 claims, see Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir.
1988), and § 1983 does not abrogate a state’s immunity. Kentucky v. Graham, 473 U.S.
159, 169 n.17 (1985). Accordingly, Plaintiff cannot recover monetary relief from the State
of Colorado or its entities under § 1983.
Accordingly, the Court recommends the Motion [#88] be granted and Plaintiff’s
claims against Defendants State of Colorado, the Thirteenth Judicial District Court of
Colorado, the State Public Defenders Office, and Defendants Deluca, Johnson, Haenlein,
and Greek, in their official capacities, be dismissed without prejudice. See Wauford v.
Richardson, 450 F. App’x 698, 699 (10th Cir. 2011) (holding that claims dismissed based
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on sovereign immunity “should have been dismissed without prejudice” for lack of subject
matter jurisdiction).
2. 	Defendants Johnson, in his individual capacity, and Starkovitch
Defendants Starkovitch and Johnson move to dismiss Plaintiff’s federal claims
against them because, as privately retained counsel and a public defender, they did not
act under color of state law and therefore are not subject to suit under 42 U.S.C. § 1983.
State Defs.’ Motion [#88] at 10-11; Starkovitch Motion [#100] at 2, 5.
Section 1983 “provides a federal cause of action against any person who, acting
under color of state law, deprives another of his federal rights.” Conn v. Gabbert, 526 U.S.
286, 290 (1999); see also Wyatt v. Cole, 504 U.S. 158, 161 (1992) (“The purpose of
§ 1983 is to deter state actors from using the badge of their authority to deprive individuals
of their federally guaranteed rights and to provide relief to victims if such deterrence
fails.”). When defense attorneys perform the traditional role of counsel in a criminal
proceeding—whether as court-appointed or privately retained counsel—they act on
behalf of their clients, not the state. Consequently, they do not act under color of state law
and cannot face § 1983 liability. Polk County v. Dodson, 454 U.S. 312, 325-26 (1981);
see also Zapata v. Pub. Defs. Off., 252 F. App’x 237, 239 (10th Cir. 2007) (“[A] public
defender representing an indigent defendant in a state criminal proceeding does not act
under color of state law.”). In his Response, Plaintiff indirectly concedes this basis for
dismissal. Response [#106] at 13-14 (acknowledging that criminal defense attorneys are
not state actors, but arguing against their dismissal in light of state law “professional
negligence” claim).
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Accordingly, the Court recommends the Motions [#88, 100] be granted and
Plaintiff’s federal claims against Defendants Starkovitch and Johnson, in their individual
capacities, be dismissed with prejudice. See Mays v. Tulsa Cnty. Pub. Defs. Off., 354
F. App’x 314, 316 (10th Cir. 2009) (finding no abuse of discretion in dismissing with
prejudice the plaintiff’s § 1983 claims against the defendant public defender because the
defendant was not a state actor).
3. 	Defendant Judge Haenlein, in his individual capacity
Plaintiff names Defendant Judge Haenlein based on his role presiding over
portions of Plaintiff’s criminal proceedings. The Amended Complaint does not indicate
that Judge Haenlein accepted Plaintiff’s guilty pleas or imposed his original sentence.
Am. Compl. [#75] at 16–17. Instead, Judge Haenlein presided over Plaintiff’s case
beginning January 12, 2022, when he sentenced Plaintiff to four years’ incarceration with
the Colorado Department of Corrections, and continued to oversee proceedings through
June 22, 2022, when he ordered Plaintiff released and terminated parole. Id. at 18-21.
The Supreme Court has long held that judges are immune from suits for money
damages. Fuller v. Davis, 594 F. App’x 935, 939 (10th Cir. 2014). A judge loses immunity
only in two situations: (1) when the act is not judicial in nature, or (2) when the judge acts
in complete absence of all jurisdiction. Id.
The Tenth Circuit has clarified that a judge acts “in the complete absence of all
jurisdiction” only when the court has no subject-matter authority at all. Stein v. Disciplinary
Bd. of Sup. Ct., 520 F.3d 1183, 1195 (10th Cir. 2008). When a court has subject matter
jurisdiction, the judge determines how to exercise that authority, and errors in doing so do
not defeat judicial immunity. Id. The Supreme Court illustrated the distinction by explaining
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that if a probate judge, who has authority only over wills and estates, tries a criminal case,
the judge acts in the clear absence of jurisdiction and loses immunity. But if a criminal
court judge convicts a defendant of a non-existent crime, the judges acts in excess of
jurisdiction and maintains immunity. Id. (citing Stump v. Sparkman, 435 U.S. 349, 357 n.
7 (1978)).
According to the Amended Complaint, Judge Haenlein acted as a state court judge
presiding over Plaintiff’s proceedings. His rulings and sentencing fell squarely within his
jurisdiction. Plaintiff contends Judge Haenlein’s sentencing was erroneous and resulted
in extending his incarceration beyond the lawful maximum. Am. Compl. [#75] at 18-21;
Response [#106] at 7. Judicial immunity protects judges from suits for money damages
even if they act in error, with malice, or in excess of their authority. King v. Marquez, No.
25-cv-00678-LTB-RTG, 2025 WL 1874910, at *3 (D. Colo. June 6, 2025), report and
recommendation adopted, 2025 WL 1874908 (D. Colo. June 26, 2025), aff’d, No. 25-
1259, 	2025 	WL 2758045 	(10th 	Cir. 	Sept. 	29, 	2025). 	Plaintiff’s 	claims 	based 	on
disagreements with or alleged errors by Judge Haenlein cannot overcome judicial
immunity.
Accordingly, the Court recommends the Motion [#88] be granted and Plaintiff’s
claims against Judge Haenlein be dismissed with prejudice. See Smith v. Glanz, 662
F. App’x 595, 596 (10th Cir. 2016) (affirming dismissal with prejudice based on absolute
judicial immunity).
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I. 	Defendants 	Logan 	County 	by 	and 	through 	its 	Board 	of 	County
Commissioners, Logan County Jail, and Logan County Sheriff Brett Powell,
in his individual and official capacities10
1. 	Defendant Logan County Jail
Defendant Logan County Jail argues that it cannot be sued under 42 U.S.C.
§ 1983. The Court agrees. See, e.g., Stone v. Jefferson Cnty. Det. Facility, 838 F. App’x
348, 350 (10th Cir. 2020) (holding that detention facilities and sheriffs’ departments are
not suable under § 1983). Because Logan County Jail is not a proper defendant, the Court
should dismiss it from this lawsuit.
Accordingly, the Court recommends granting Motion [#94] and Plaintiff’s claims
against Logan County Jail be dismissed with prejudice. See, e.g., Sarnella v. Kuhns,
No. 18-cv-00779-PAB-NYW, 2019 WL 1112388, at *2, 4 (D. Colo. Mar. 8, 2019)
(dismissing a sheriff’s department with prejudice as a non-suable entity).
2. 	Defendants Logan County and Sheriff Powell, in his official capacity
Plaintiff does not indicate in his Amended Complaint whether he intended to name
Defendant Sheriff Powell in his individual capacity, official capacity, or both. Out of caution,
Defendants address claims asserted against them in both capacities. Logan Cnty. Defs.’
Motion [#94] at 5, 9-11. Defendants explain that an official capacity claim against Sheriff
Powell equates to a claim against the government entity he represents. Id. at 5 n.2 (citing
Cox v. Glanz, 800 F.3d 1231, 1254 (10th Cir. 2015)). Although Defendants identify that
entity as the Logan County Sheriff’s Office, the proper entity is Logan County. See Cox,
________________________
10 Because Plaintiff’s allegations do not involve Defendants Logan County, through its Board of
County Commissioners, Logan County Jail, or Sheriff Brett Powell, in his individual or official
capacities, until after Plaintiff’s 2022 arrest, Am. Compl. [#75] at 20–21, their Motion to Dismiss
addresses only Plaintiff’s excessive confinement claim. Motion [#94].
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800 F.3d at 1254 (holding that a suit against a sheriff in his official capacity equates to a
suit against the county).11
A municipality constitutes a “person” subject to § 1983 liability. McDonald v. Wise,
769 F.3d 1202, 1215 (10th Cir. 2014) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
690–91 (1978)). Under Monell, municipalities are liable only for their own actions, not
vicariously liable for employees’ actions. Crowson v. Wash. Cnty., 983 F.3d 1166, 1191
(10th Cir. 2020). To state a municipal liability claim, a plaintiff must adequately allege: “(1)
an official policy or custom, (2) causation, and (3) deliberate indifference.” Lucas v. Turn
Key Health Clinics, LLC, 58 F.4th 1127, 1145 (10th Cir. 2023).
Regarding the first element, courts recognize several ways to establish an official
policy or custom:
1. 	A formal regulation or policy statement;
2. 	An informal custom amounting to a widespread practice so permanent and
well-settled that it has the force of law;
3. 	Decisions by employees with final policymaking authority;
4. 	Ratification 	by 	final 	policymakers 	of 	decisions-and 	the 	reasoning-of
subordinates; or
5. 	Failure 	to 	adequately 	train 	or 	supervise 	employees 	when 	deliberate
indifference to foreseeable harm exists.
Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1283 (10th Cir. 2019).
Regarding the second element, i.e., causation, the policy or custom must serve as
the “moving force” behind the plaintiff’s deprivation of federal rights. Bd. of Cnty. Comm’rs
v. Brown, 520 U.S. 397, 400 (1997); see also Schneider v. City of Grand Junction Police
________________________
11 Moreover, like the Logan County Jail, the Logan County Sheriff’s Office is not a suable entity.
Stone, 838 F. App’x at 350.
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Dep’t, 717 F.3d 760, 770 (10th Cir. 2013) (policy or practice must “be closely related” to
the violation of federally protected rights). Regarding the third element, a policymaker acts
with deliberate indifference when he “consciously” fails to act in the face of an obvious
risk of constitutional harm that will almost inevitably result in injury. Hollingsworth v. Hill,
110 F.3d 733, 745 (10th Cir. 1997).
Plaintiff has not identified any Logan County policy or custom that caused the
claims asserted in his Amended Complaint. He fails to explain how Logan County’s
policies affected the events underlying his claims, which begin with an investigation and
arrest by Defendant Whitmore, a member of the City of Burlington Police Department.
The Amended Complaint mentions a defendant associated with Logan County only in
April 2022, when Plaintiff was confined in Logan County Jail following his arrest by
Defendant Brunsting, a Colorado Parole Officer. Am. Compl. [#75] at 20.
As 	noted, 	a 	municipality 	may 	be 	liable 	for 	actions 	by 	officials 	with 	“final
policymaking authority.” Whitson v. Bd. of Cnty. Comm’rs, 106 F.4th 1063, 1067 (10th Cir.
2024) (“[W]hen an official takes action over which he or she has final policymaking
authority, the policymaker is the municipality, so it is fair to impose liability on that entity
for that action.”). Plaintiff alleges that upon his arrest and booking at Logan County Jail,
he informed Sheriff Powell that he was not on parole and that Defendant Brunsting lacked
authority to arrest him, but Powell ignored him. Am. Compl. [#75] at 9, 20. Defendants
note that Plaintiff’s arrest and confinement followed a court order placing him on parole
and Defendant Brunsting’s decision to arrest him. Plaintiff does not allege Sheriff Powell
has policymaking authority over court sentencing orders or parole decisions, nor could
he.
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Because Plaintiff does not allege that his confinement in Logan County Jail
resulted from a Logan County policy or final policymaker, his claims against Logan County
fail.
Accordingly, the Court recommends the Motion [#94] be granted and Plaintiff’s
claims against Defendant Logan County be dismissed without prejudice. Gee, 627 F.3d
at 1186.
J. 	Remaining Defendants
1. 	Ethan Ice and Colorado Legal Defense Group
As mentioned at the outset, Plaintiff has sued 33 defendants, but only 17 moved
to dismiss.
Ethan Ice and the Colorado Legal Defense Group are two defendants merely
named in the Amended Complaint, but no allegations are asserted against them. See
generally Am. Compl. [#75]. Although these two defendants did not file a motion to dismiss
or otherwise respond to the Amended Complaint, they previously filed a Motion to Dismiss
[#69] in response to Plaintiff’s original Complaint [#1], which also named these defendants
but did not contain any allegations against them. In that Motion to Dismiss, Defendants
Ice and Colorado Legal Defense Group sought dismissal because Plaintiff “failed to allege
what acts and/or omissions were committed by [them].” Motion to Dismiss [#69] at 4
(arguing that “Plaintiff’s pleading is fatally deficient”). The Court agrees.
“[T]o state a claim in federal court, a complaint must explain what each defendant
did to him or her; when the defendant did it; how the defendant’s action harmed him or
her; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v.
Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). This information
provides “the defendant sufficient notice to begin preparing its defense and the court
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sufficient clarity to adjudicate the merits.” Id.; see also Bell Atl. v. Twombly, 550 U.S. 544
(2007). Here, Plaintiff’s allegations provide Defendants no notice as to what they did to
Plaintiff, when they did it, how their action harmed him, and what specific legal right
Plaintiff believes they violated.
Accordingly, the Court recommends that Plaintiff’s claims against Defendants
Ethan Ice and Colorado Legal Defense Group be dismissed without prejudice.
2. 	Jessica Linnemeyer-Schlagel and August Linnemeyer
On May 1, 2025, in response to a filing by Defendants Linnemeyer-Schlagel and
Linnemeyer, the Court ordered the Clerk of Court to “select, notify, and appoint [pro bono]
counsel to represent [them] in this civil matter.” Minute Order [#27] at 3. The Court advised
these two defendants that “there is no guarantee” that pro bono counsel will undertake
representation and “until appointed counsel enters an appearance, they are responsible
for all scheduled matters, including hearings, depositions, motions, and trial.” Id. The
Court further advised that they remain obligated “to comply with the Federal Rules of Civil
Procedure, the Local Rules in this District, and all orders of this Court.” Id. (citing Green
v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)). The Court also set a deadline for
Defendants Linnemeyer-Schlagel and Linnemeyer to “answer or otherwise respond to the
Complaint [#1].” Id. That deadline was “either (1) June 30, 2025, or (2) 14 days after
counsel enters an appearance on their behalf, whichever comes first.” Id.
On May 29, 2025, the Clerk of Court filed a notice indicating that the Clerk was
unable to identify an attorney available and willing to accept appointment on a pro bono
basis. Notice [#65]. About two weeks later, on June 10, 2025, Plaintiff filed the operative
Amended Complaint [#75]. Defendants Linnemeyer-Schlagel and Linnemeyer have not
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filed a response to the operative complaint by the court-set deadline of June 30, 2025,
even though they were advised that they are obligated to comply with all court orders.
However, Plaintiff has not sought entry of default based on these two defendants’ failure
to respond.
Accordingly, IT IS HEREBY ORDERED that Plaintiff shall file a Motion for Clerk’s
Entry 	of 	Default 	or 	dismissal 	papers 	for 	Defendants 	Linnemeyer-Schlagel 	and
Linnemeyer no later than twenty-one days from the date of this Order.
The Court addresses the remaining 10 defendants in a contemporaneously issued
order to show cause.
IV. 	Conclusion
For the reasons stated above,
IT IS HEREBY RECOMMENDED that the Motions [#81, #83, #88, #94, #100] be
GRANTED.
IT IS FURTHER RECOMMENDED that Plaintiff’s claims against Defendants Ethan
Ice and Colorado Legal Defense Group be dismissed without prejudice.
IT IS ORDERED that Plaintiff shall file a Motion for Clerk’s Entry of Default or
dismissal papers for Defendants Linnemeyer-Schlagel and Linnemeyer no later than
twenty-one days from the date of this Recommendation and Order.
IT IS FURTHER ORDERED that pursuant to Federal Rule of Civil Procedure 72,
the parties shall have fourteen (14) days after service of this Recommendation to serve
and file any written objections to obtain reconsideration by the District Judge to whom this
case is assigned. A party’s failure to serve and file specific, written objections waives de
novo review of the Recommendation by the District Judge, Federal Rule of Civil
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Procedure 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate
review of both factual and legal questions, Makin v. Colo. Dep’t of Corr., 183 F.3d 1205,
1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party’s
objections to this Recommendation must be both timely and specific to preserve an issue
for de novo review by the District Court or for appellate review. United States v. One
Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir.1996).
Dated: February 6, 2026 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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