Carbajal v. Watada

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 12-cv-03231-PAB
VICTORIA CARBAJAL, and
LUIS LEAL,
Plaintiffs,
v.
REBEKAH WATADA,
Defendant.
ORDER
This matter comes before the Court on Defendant’s Motion to Dismiss Plaintiffs’
Fourth Amended Complaint [Docket No. 420].
The fourth amended complaint, which is the operative complaint, alleges a claim
by plaintiffs Victoria Carbajal and Luis Leal against defendant Rebekah Watada 1 for
malicious prosecution. Docket No. 419 at 6-8, ¶¶ 17-26. Defendant moves, pursuant to
Federal Rule of Civil Procedure 12(b)(6), to dismiss the complaint for failure to state a
claim. Docket No. 420. Plaintiffs filed a response. Docket No. 426. Defendant filed a
reply. Docket No. 430.
1 Earlier in the litigation, Ms. Watada went by the name Rebekah Melnick. See,
e.g., Docket No. 1.
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I. BACKGROUND
A. Facts 2
In 2011, plaintiffs were subpoenaed to testify in a state criminal trial, People v.
Carbajal, scheduled for July 27, 2011 (the “Dean Carbajal trial”). Docket No. 419 at 3,
¶ 7. On July 5, 2011, the state court vacated the July 27 trial date. Id., ¶ 8. Defendant
made no effort to inform plaintiffs that she expected plaintiffs to appear at the trial
rescheduled for November 29, 2011. Id. On July 27, defendant appeared before a
different judge than the one assigned to the criminal case, id., ¶ 9, and “testified ex
parte” that plaintiffs “had been subpoenaed to testify for trial this date, July 27, 2011, but
failed to appear.” Id., ¶ 10. Consequently, the judge, Edward Bronfin, issued an arrest
warrant for plaintiffs for contempt of court. Id., ¶ 11. Defendant had no intention of
calling plaintiffs to testify. Id. at 7, ¶ 24. Defendant pursued the contempt charges “to
harass [plaintiffs] and chill their exercise of free speech and support for their loved one
in a separate criminal matter.” Id. at 6, ¶ 19. Both plaintiffs were arrested and released
on bond. Id. at 4, ¶¶ 12-13. At a hearing on August 8, 2011, the “charges” were
dropped and plaintiffs were informed that the Dean Carbajal trial had been continued to
November 29, 2011. Id., ¶ 14.
B. Procedural History
This case was originally filed on December 11, 2012, with plaintiffs asserting
numerous claims on a wide range of activity against many defendants. See generally
2 The facts below are taken from plaintiff’s fourth amended complaint, Docket No.
419, and all non-conclusory allegations are presumed to be true, unless otherwise
noted, for purposes of ruling on defendant’s motion to dismiss.
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Docket No. 1. 3 On February 20, 2014, the magistrate judge issued a recommendation
on the defendants’ motion to dismiss, recommending that all claims be dismissed. See
Docket No. 185. On March 31, 2014, Judge Robert Blackburn accepted the magistrate
judge’s recommendation. See generally Docket No. 198. Plaintiffs appealed the
decision. See Docket No. 216. The Tenth Circuit affirmed on all counts except
malicious prosecution against defendant for her actions regarding the contempt
proceeding. See Carbajal v. McCann, 808 F. App’x 620, 640 (10th Cir. 2020)
(unpublished). Specifically, the Tenth Circuit concluded that, although prosecutors
have absolute immunity for actions intimately associated with the judicial process, they
do not when they act as witnesses. See id. at 630-32. Because the complaint alleged
that defendant provided false testimony to the court, the Tenth Circuit reversed the
grant of absolute immunity. Id. at 631-32. After the Court vacated the dismissal of the
malicious prosecution claim, plaintiffs filed their fourth amended complaint. See Docket
419.
On November 23, 2020, defendant filed the present motion to dismiss,
arguing that she is entitled either to absolute or qualified immunity for her actions
leading to plaintiffs’ arrest. See generally Docket No. 420. 4 On September 22, 2021,
the Court granted defendant’s motion, finding that plaintiffs had failed to allege
sufficiently the “favorable termination” element of a malicious prosecution claim. Docket
No. 432 at 10-12. On August 21, 2024, the Tenth Circuit Court of Appeals reversed this
3 At the time of the initial complaint, Dean Carbajal was also a plaintiff. Docket
No. 1. at 1. Mr. Carbajal’s claims have since been dismissed. See generally Docket
No. 368.
4 The Court rejected defendant’s assertion of absolute immunity, see Docket No.
432 at 4-7, and the Tenth Circuit affirmed. See Docket No. 451 at 9-11.
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Court’s order based on an intervening change in the law regarding the interpretation of
the “favorable termination” element. Docket No. 451 at 2-3, 6-8. The Tenth Circuit held
that plaintiffs had sufficiently alleged the “favorable termination” element and remanded
the case to this Court to consider defendant’s arguments regarding qualified immunity
on three other elements of the claim. Id.
On May 9, 2025, the Court vacated its prior order and provided the parties with
the opportunity to file supplemental briefs on the motion to dismiss, Docket No. 455
(vacating prior order); Docket No. 456 (inviting supplemental briefing), which both
parties did. Docket No. 464; Docket No. 466.
II. LEGAL STANDARD
A. Motion to Dismiss
To survive a Rule 12(b)(6) motion to dismiss, the complaint must contain
“enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk,
L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A plausible claim is a claim that “allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the court must accept the
well-pled allegations of the complaint as true and construe them in the light most
favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002),
conclusory allegations are not entitled to be presumed true. Iqbal, 556 U.S. at 681.
However, so long as the plaintiff offers sufficient factual allegations such that the right to
relief is raised above the speculative level, she has met the threshold pleading
standard. See, e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282,
1286 (10th Cir. 2008).
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B. Qualified Immunity
“Qualified immunity balances two important interests – the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). A court should resolve
questions of qualified immunity at the earliest possible stage of litigation. Anderson v.
Creighton, 483 U.S. 635, 646 n.6 (1987). However, a plaintiff facing a qualified
immunity challenge still does not have a heightened pleading standard. Currier v.
Doran, 242 F.3d 905, 916-17 (10th Cir. 2001).
Under the doctrine of qualified immunity, “government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). “A motion to dismiss based on qualified immunity imposes the burden on
the plaintiff to show ‘both that [1] a constitutional violation occurred and [2] that the
constitutional right was clearly established at the time of the alleged violation.’” Doe v.
Woodard, 912 F.3d 1278, 1289 (10th Cir. 2019) (quoting Green v. Post, 574 F.3d 1294,
1300 (10th Cir. 2009)); see also T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017).
Courts are “permitted to exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case.” Pearson, 555 U.S. at 236.
A constitutional right is clearly established if “the contours of the right [are]
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Surat v. Klamser, 52 F.4th 1261, 1276 (10th Cir. 2022). “Ordinarily,
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in order for the law to be clearly established, there must be a Supreme Court or Tenth
Circuit decision on point, or the clearly established weight of authority from other courts
must have found the law to be as the plaintiff maintains.” Torres v. Madrid, 60 F.4th
596, 603 (10th Cir. 2023); see also Irizarry v. Yehia, 38 F.4th 1282, 1293 (10th Cir.
2022). The Supreme Court has repeatedly told lower courts not to define clearly
established law at a high level of generality. Quinn v. Young, 780 F.3d 998, 1005 (10th
Cir. 2015) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). “The general
proposition . . . that an unreasonable search or seizure violates the Fourth Amendment
is of little help in determining whether the violative nature of particular conduct is clearly
established.” Id. (citation omitted). “The plaintiff bears the burden of citing to us what
he thinks constitutes clearly established law.” Thomas v. Durastanti, 607 F.3d 655, 669
(10th Cir. 2010) (citing Albright v. Rodriguez, 51 F.3d 1531, 1534–35 (10th Cir. 1995)).
III. ANALYSIS
Defendant argues that she is entitled to qualified immunity because plaintiffs’
allegations do not support a claim for a constitutional violation. See Docket No. 420 at
12-16; Docket No. 464 at 3-5. Plaintiffs respond that their right to be free from malicious
prosecution is clearly established and that the complaint is sufficient to make out a
claim. See Docket No. 426 at 12-16. The Court agrees with defendant.
To state a claim for malicious prosecution, a plaintiff must adequately allege: “(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
original arrest, continued confinement, or prosecution; (4) the defendant acted with
malice; and (5) the plaintiff sustained damages.” See Wilkins v. DeReyes, 528 F.3d
790, 799 (10th Cir. 2008). The Tenth Circuit remanded the case for this Court to
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“resume its consideration of” the third, fourth, and fifth elements of plaintiffs’ malicious
prosecution claim. Docket No. 451 at 3. However, defendant challenges only the
sufficiency of the allegations regarding the third and fourth elements – probable cause
and malice. Docket No. 420 at 13-13; Docket No. 464 at 2-3. The Court will discuss
malice and probable cause.
A. Malice
Defendant, in her supplemental briefing, argues that plaintiffs’ claim fails to allege
sufficiently the malice element of a malicious prosecution claim. Docket No. 464 at 3.
The Tenth Circuit has explained that the common law elements of a malicious
prosecution claim are the starting point for the analysis of a Section 1983 malicious
prosecution claim. Chavez-Torres v. City of Greeley, 660 F. App'x 627, 629 (10th Cir.
2016) (unpublished). Under Colorado law, the malice in a common law malicious
prosecution claim is defined as “any motive other than a desire to bring an offender to
justice.” Id. (citing Suchey v. Stiles, 394 P.2d 739, 741 (1964)). The Tenth Circuit has
held that the malice element requires allegations of intent, rather than mere negligence.
See id. The Tenth Circuit has described this element as requiring intentional or reckless
disregard of the truth. Id. (citing Fletcher v. Burkhalter, 605 F.3d 1091, 1095 (10th Cir.
2010)).
The complaint alleges that defendant pursued the contempt charges in “an effort
to harass [plaintiffs] and chill their exercise of free speech and support for their loved
one in a separate criminal matter.” Docket No. 419 at 6, ¶ 19; see also id. at 5, ¶ 15.
The complaint also alleges that defendant had no intention of calling plaintiffs as
witnesses at trial. Id. at 7, ¶ 24. The Court finds that this assertion is sufficient to plead
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malice since it alleges that the motivation for the prosecution was something other than
a desire to bring an offender to justice. 5
The Court will discuss qualified immunity in regard to the probable cause
element.
B. Probable Cause
The third element of a malicious prosecution claim is that no probable cause
supported the original arrest, continued confinement, or prosecution. Wilkins, 528 F.3d
at 799. For a malicious prosecution claim where the plaintiff has been arrested
pursuant to a warrant, the question regarding this element is whether there was
probable cause that supported the issuance of a warrant. See id. Here, the relevant
event was the July 27, 2011 hearing at which defendant presented information that led
to warrants being issued for plaintiffs. Docket No. 419 at 3, ¶¶ 9-11. The issue is
whether defendant had probable cause to ask the court to issue arrest warrants for
plaintiffs.
“Probable cause for an arrest warrant is established by demonstrating a
substantial probability that a crime has been committed and that a specific individual
committed the crime.” Wilkins, 528 F.3d at 801 (quoting Wolford v. Lasater, 78 F.3d
484, 489 (10th Cir. 1996)).
5 Defendant argues that, “as neither Plaintiff attended the July 27, 2011, hearing,
there exists no allegations or evidence Ms. Watada acted with malice at that hearing.
All Ms. Watada did was inform the State District Court of the existence of the
subpoenas and Plaintiffs’ failure to appear in response to the subpoenas. Such an
action cannot be considered malicious.” Docket No. 464 at 3, ¶ 6; see also Docket No.
420 at 14. Defendant does not identify why plaintiffs need to have personally observed
the hearing in order to state a claim. Moreover, her argument fails for the reasons
discussed above – plaintiffs have adequately alleged a motivation that could be
considered malicious.
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The state court’s authority to issue a warrant for failure to appear under
subpoena comes from Colorado Rule of Criminal Procedure 17. See Colo. R. Crim. P.
17(h). The version of Rule 17(h) in effect at the time of the 2011 hearing stated that
“[f]ailure by any person without adequate excuse to obey a subpoena served upon him
may be deemed a contempt of the court from which the subpoena issued.” See Colo.
Crim. P. 17(h) (effective Jan. 1, 2010, subsequently amended effective July 1, 2012);
see also People v. Mann, 646 P.2d 352, 357 (Colo. 1982) (applying what was then Rule
17(g)). 6
The operative complaint is properly read to acknowledge that plaintiffs, after
having been subpoenaed to appear for trial, see Docket No. 419 at 3, ¶ 7 (“Victoria
Carbajal and Luis Leal were subpoenaed to testify in a trial scheduled for July 27,
2011”), did not appear. Regarding their failure to appear, the complaint refers to the
“non-appearance of Ms. Carbajal and Mr. Leal,” id., ¶ 9, and that plaintiffs “failed to
appear,” id., ¶ 10, without any allegation that they actually did appear. Moreover, the
allegations of the complaint are fairly read to base the alleged lack of probable cause,
not on a false representation that plaintiffs failed to appear when they did in fact appear,
but on defendant’s knowledge that the trial had been vacated. See id. at 6, ¶ 20
(“Defendant Watada lacked probable cause to believe that Ms. Carbajal and Mr. Leal
had failed to appear to a scheduled trial in violation of a Subpoena, because no trial was
conducted on the date of the alleged violation of subpoena, and no legal obligation
existed to appear and testify at a nonexistent hearing, thus violating probable cause to
6 The Court notes that the 2012 amendment to Rule 17(h), which is the most
recent amendment to that section of the rule, modified language but did not remove or
alter the language that is the subject of the Court’s analysis here.
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arrest and prosecute the Plaintiffs for contempt of court.”). Plaintiffs’ response brief is
consistent with this interpretation of the complaint and nowhere suggests that plaintiffs
actually appeared on the date they were subpoenaed to appear. See Docket No. 426.
The Court finds that, given the complaint alleges that plaintiffs were subpoenaed to
appear on July 27, 2011 and is fairly read to allege that they did not appear, defendant
reasonably believed that there was substantial probability a violation of Rule 17(h)
occurred and therefore probable cause existed for issuance of arrest warrants for
contempt of court.
Plaintiffs’ arguments regarding a lack of probable cause focus on the falsity of
defendant’s statements to Judge Bronfin. Docket No. 426 at 10-11; Docket No. 466 at
5-6. Plaintiffs’ theory of falsity is predicated on the legal proposition that a person
subpoenaed for a trial cannot be held in contempt of court if, after service of the
subpoena, the trial was continued or vacated. Plaintiffs’ response brief, however, cites
no case supporting this theory, and the Court has not identified any Colorado cases
supporting it. 7 Because defendant has raised the defense of qualified immunity,
plaintiffs must carry the burden to show that defendant’s actions violated a federal
constitutional right and that the right was clearly established at the time of defendant’s
conduct. T.D., 868 F.3d at 1220. As to the first prong of the qualified immunity
analysis, by failing plausibly to allege a lack of probable cause, plaintiffs do not state a
7 Courts outside of Colorado have held that “a subpoena imposes a continuing
duty on the witness to attend court at the direction of the party who obtained the
subpoena.” State v. Klempt, 910 P.2d 326, 328 (N.M. Ct. App. 1995) (collecting cases);
Russell v. State, 793 P.2d 1085, 1087 (Alaska Ct. App. 1990). The only contrary
authority arises in the context of states whose laws explicitly state that the continuance
of a trial results in the continuance of a subpoena. See Gentry v. State, 770 S.W.2d
780, 785 (Tex. Crim. App. 1988) (applying Tex. Code Crim. Proc. § 24.06(1)).
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claim of malicious prosecution, and therefore do not show a violation of their
constitutional rights under the Fourth and Fourteenth Amendments.
As to the second prong, plaintiffs have the burden to show that their Fourth and
Fourteenth Amendment rights to be free from arrest without probable cause under these
circumstances were clearly established. Thomas, 607 F.3d at 669. Thus, plaintiffs
need to cite a case that shows it was clearly established on July 27, 2011 that a district
attorney, who subpoenaed a witness for a criminal trial, which trial was later continued,
cannot seek an arrest warrant for contempt of court when the witness fails to appear on
the original trial date. Plaintiffs cite no such case. 8 Plaintiffs merely argue that they
“had a constitutional right to be free from [an] arrest and prosecution without probable
cause under the Fourth and Fourteenth Amendment [sic] to the United States
Constitution.” Docket No. 426 at 13 (citing Franks v. Delaware, 438 U.S. 154, 155-56
(1978), Miller v. Pate, 386 U.S. 1, 7 (1967), Mooney v. Holohan, 294 U.S. 103 (1935)).
However, none of the cases cited by plaintiffs are pertinent here. 9 Franks addresses a
8 The Court also has not identified any cases that would clearly establish this
right. 9 Plaintiffs also cite Kalina v. Fletcher, 522 U.S. 118 (1997), Cruz v. Kauai Cnty.,
279 F.3d 1064 (9th Cir. 2002), Nielander v. Bd. of Cnty. Comm'rs of Cnty. of Republic,
Kan., 582 F.3d 1155 (10th Cir. 2009), and Mink v. Suthers, 482 F.3d 1244 (10th Cir.
2007). Docket No. 419 at 5, ¶ 16. Kalina involved a prosecutor who made false
statements in support of an arrest warrant. See 522 U.S. at 120-21. It did not involve a
warrant for a witness who failed to appear and discussed absolute, rather than qualified
immunity. Cruz involved an allegedly false statement by a prosecutor in support of a
motion to revoke plaintiff’s bail. 279 F.3d at 1066. The court held that the prosecutor
was entitled to qualified immunity. Id. at 1069-70. It is not support for plaintiffs’ legal
position. Nielander involved a malicious prosecution claim, but was resolved on the
basis that plaintiff was not seized. 582 F.3d at 1164. It has no applicability here. Mink
involved a prosecutor’s review of a search warrant and the issue of absolute
prosecutorial immunity. 482 F.3d at 1263. It is factually and legally distinguishable from
the issues here.
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criminal defendant’s right to suppress evidence based on false statements made in a
search warrant application. 438 U.S. at 155-56. Miller and Mooney involve habeas
corpus petitions arising out of state criminal cases in which defendants were convicted
after a prosecutor knowingly introduced false evidence at trial. Miller, 386 U.S. at 2;
Mooney, 294 U.S. at 109-10. The Supreme Court has reminded lower courts on
numerous occasions that a denial of qualified immunity cannot be predicated on
defining “clearly established law at a high level of generality, since doing so avoids the
crucial question whether the official acted reasonably in the particular circumstances
that he or she faced.” D.C. v. Wesby, 583 U.S. 48, 63–64 (2018). Yet plaintiffs, who
base their malicious prosecution claim on the legal theory that a subpoenaed witness
has no duty to appear when the trial date is continued, cite no case anywhere in the
United States supporting that proposition, much less a case showing that plaintiffs’ legal
theory was “clearly established.” 10
The Court finds that plaintiffs have failed to meet their burden on both the first
and second prongs of the qualified immunity analysis.
IV. CONCLUSION
The Court will grant defendant’s motion and dismiss with prejudice plaintiffs’
malicious prosecution claim. 11 It is therefore
ORDERED that Defendant’s Motion to Dismiss Plaintiffs’ Fourth Amended
Complaint [Docket No. 420], as supplemented by Defendant’s Supplementary Brief
10 Plaintiffs have also failed to cite any clearly established law that a prosecutor
has no probable cause to seek issuance of an arrest warrant when a witness fails to
appear and the prosecutor did not intend to call that witness at the trial or hearing.
11 See Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010) (dismissal based on
qualified immunity should be with prejudice).
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Pursuant to Court Order Dated May 9, 2025 [Docket No. 464], is GRANTED. It is
further
ORDERED that plaintiffs’ malicious prosecution claim against Rebekah Watada
is DISMISSED with prejudice. It is further
ORDERED that this case is closed.
DATED March 2, 2026.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
____________________________
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