Hicks v. City and County of Denver, The et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 22-cv-01136-CNS-JPO
BRIAN HICKS,
Plaintiff,
v.
THE CITY AND COUNTY OF DENVER;
TIMOTHY TWINING;
MARK CHUCK;
JANE/JOHN DOE #1;
JANE/JOHN DOE #2; and
JANE/JOHN DOE #3,
Defendants.
______________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
Magistrate Judge James P. O’Hara
This matter comes before the Court on City and County of Denver’s and Mark
Chuck’s Motion to Dismiss Plaintiff’s Second Amended Complaint Under F.R.C.P.
12(b)(6) (the “Denver Motion”) [#43], and Defendant Timothy Twining’s Motion to Dismiss
Plaintiff’s Second Amended Complaint (“Mr. Twining’s Motion”) [#44] (collectively, the
“Motions”). The Motions have been referred to this Court [#46]. This Court has carefully
considered the Motions and related briefing, the entire case file and the applicable case
law, and has determined that oral argument would not materially assist in the disposition
of the Motions. For the following reasons, the Court respectfully RECOMMENDS that Mr.
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Twining’s Motion be GRANTED, and that the Denver Motion be GRANTED IN PART and
DENIED IN PART as set forth below.
I. 	BACKGROUND1
Plaintiff is currently incarcerated at the Bent County Correctional Facility. [#41 at
2] 	$3,406.00 of Plaintiff’s money had been held as evidence in a criminal case against
Plaintiff. [Id. at 3] Following Plaintiff’s criminal trial, the resolution of his appeal, and the
denial of his petition for writ of certiorari, Plaintiff sought an order from the district court
that sentenced him that the $3,406.00 be returned to Plaintiff. [Id.] Plaintiff asserts that
the money was not used as evidence in the prosecution’s case-in-chief at trial, was not
contraband, and was not subject to forfeiture. [Id. at 4] 	The sentencing court exercised
jurisdiction over the motion, and ordered the prosecution to respond. [Id.] In response to
Plaintiff’s motion, “the Denver District Attorney’s Office, through its Chief Deputy District
Attorney Timothy Twining, conceded that the prosecution had no ‘cognizable basis to
assert retention’ [of Plaintiff’s] cash.” [Id.] Mr. Twining, however, “urged the court to enter
an order directing [that] the money be applied to the restitution balance” in Plaintiff’s case.
[Id.] After considering the arguments, the sentencing court concluded that “it did not have
legal 	authority 	to 	apply 	the 	money 	to 	[Plaintiff’s] 	restitution 	balance 	under 	the
circumstances,” but it also “denied [Plaintiff’s] request to have the money returned.” [Id.]
The sentencing court did, however, return other personal items to Plaintiff that had been
seized along with the money—such as clothing, sneakers, and a wallet. [Id.]
1 The facts are drawn from the allegations in Plaintiff’s Second Amended Complaint (the
“Complaint”) [#41], which must be taken as true when considering a motion to dismiss.
Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662
F.3d 1152, 1162 (10th Cir. 2011)).
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Plaintiff appealed the sentencing court’s order denying the release of the money.
[Id.] The Appellate Division of the Colorado Attorney General’s office, “at the direction of
[Mr.] Twining, subsequently objected to the release of [Plaintiff’s] cash, despite conceding
that there were no ‘direct legal grounds’ authorizing the continued retention of the funds.”
[Id. at 5] The Colorado Court of Appeals observed that there was a split of authority on
the issue, but concluded that the sentencing court lacked jurisdiction to order the return
of his money. [Id.] The court therefore vacated all orders entered by the sentencing court
“to the extent they address[ed] [Plaintiff’s] request for return of the cash.” 	[Id.] 	Plaintiff
filed a petition for writ of certiorari with the Colorado Supreme Court to “resolve the split
of authority” and “clarify that trial courts do indeed have ancillary jurisdiction to decide
post sentence motions for the return of property.” [Id.] Plaintiff’s petition was denied. [Id.]
Plaintiff then turned to the Denver City and County Municipal Code of Ordinances
and the Denver Police Department’s Operations Manual. [Id.] Plaintiff alleges that neither
Denver, nor the Denver Police Department, have procedures in place to address property
retention issues. [Id. at 7] Plaintiff did determine that—according to the Municipal Code
and the Denver Police Department’s Operations Manual—the Commander of the Major
Crimes Division, the Commanding Officer of the Homicide Unit, the Custodian of Property,
and the Denver District Attorney’s Office were responsible for deciding to retain or release
property held as evidence in cases such as Plaintiff’s. 	[Id.] 	Plaintiff learned that
Defendant Mark Chuck was the Commander of the Major Crimes Division, and mailed a
certified letter addressed to Commander Chuck requesting that the money be released
immediately. [Id.] The letter contained verification that the criminal cases against Plaintiff
had concluded, and that the Denver District Attorney’s Office had conceded that there
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was no cognizable basis to hold the funds. 	[Id. at 7-8] 	The letter was delivered, and a
Denver Police Department representative signed for its receipt. 	[Id. at 12] 	Plaintiff did
not receive a response from Commander Chuck or any other Dever Police Department
representative. [Id. at 8]
Plaintiff’ original Complaint was docketed on May 6, 2022, and alleged that the
failure to return his money violated Plaintiff’s constitutional rights. [#1] Plaintiff’s operative
Complaint asserts Fourth Amendment, substantive due process, and procedural due
process claims against Defendants. [#41 at 8-18] Commander Chuck and the City and
County of Denver filed their Motion to Dismiss Plaintiff’s Second Amended Complaint on
January 17, 2024 [#43], and 	Mr. Twining filed his Motion to Dismiss Plaintiff’s Second
Amended Complaint on January 24, 2024 [#44]. 	Plaintiff filed his responses on March
11, 2024 [#47] and April 8, 2024 [#49], respectively. The Court deems these responses
timely filed. [#58] Defendants filed their respective replies on March 25, 2024, and April
26, 2024. [##48; 57]
II. 	STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint
for “lack of subject-matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a judgment
on the merits of a plaintiff’s case, but only a determination that the court lacks authority
to adjudicate the matter. 	See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)
(recognizing federal courts are courts of limited jurisdiction and may only exercise
jurisdiction when specifically authorized to do so). 	A court lacking jurisdiction “must
dismiss the cause at any stage of the proceeding in which it becomes apparent that
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jurisdiction is lacking.” 	Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.
1974).
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In
deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded
factual allegations . . . and view these allegations in the light most favorable to the
plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original)
(quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a
plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the
scope of the allegations in a complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims
across the line from conceivable to plausible.’” 	Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff
to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she
is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The court’s ultimate duty is
to “determine whether the complaint sufficiently alleges facts supporting all the elements
necessary to establish an entitlement to relief under the legal theory proposed.” 	Forest
Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
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“A pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The
Haines rule applies to all proceedings involving a pro se litigant.” 	Id. at 1110 n.3. 	The
court, however, cannot be a pro se litigant’s advocate. See Yang v. Archuleta, 525 F.3d
925, 927 n.1 (10th Cir. 2008).
III. 	ANALYSIS
A. 	Mr. Twining’s Motion
i. 	Eleventh Amendment Immunity
Mr. Twining argues that he is entitled to Eleventh Amendment immunity for
Plaintiff’s claims against him in his official capacity. [#44 at 6-9] Because this argument
implicates this Court’s subject matter jurisdiction, the Court addresses it at the outset.
Fent v. Okla. Water Res. Bd., 235 F.3d 553, 559 (10th Cir. 2000) (“[O]nce effectively
asserted [Eleventh Amendment] immunity constitutes a bar to the exercise of federal
subject matter jurisdiction.” (emphasis omitted)).
The Eleventh Amendment provides: “The Judicial Power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.” 	U.S. Const. amend. XI. 	The Supreme Court has recognized, however,
that “States’ sovereign immunity is not limited to the literal terms of the Eleventh
Amendment.” 	Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440, 446 (2004).
“Although the text of the Amendment refers only to suits against a State by citizens of
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another State, [the Supreme Court] ha[s] repeatedly held that an unconsenting State also
is immune from suits by its own citizens.” Id.
“Eleventh Amendment immunity extends to state agencies that act as arms of the
state, but it does not extend to counties, cities, or other political subdivisions of the state.”
Ambus v. Granite Bd. Of Educ., 975 F.2d 1555, 1560 (10th Cir. 1992). “The arm-of-the-
state doctrine bestows immunity on entities created by state governments that operate as
alter egos or instrumentalities of the states.” Watson v. Univ. of Utah Med. Ctr., 75 F.3d
569, 574 (10th Cir. 1996). 	Moreover, “[u]nder the Eleventh Amendment, a plaintiff's
claims are barred when brought against a state agent in their official capacity.” Kirchner
v. Marshall, No. 22-cv-01512-CNS-MEH, 2023 WL 110953, at *3 (D. Colo. Jan. 5, 2023)
(citing Hafer v. Melo, 502 U.S. 21, 25 (1991) and Johnson v. Swibas, No. 14-CV-02258-
BNB, 2014 WL 5510930, at *2 (D. Colo. Oct. 31, 2014)).
Plaintiff sues Mr. Twining, the “Chief Deputy District Attorney,” in his official
capacity. [#41 at 2, 4] “Official-capacity suits . . . ‘generally represent . . . another way of
pleading an action against an entity of which an officer is an agent.’” Kentucky v. Graham,
473 U.S. 159, 165 (1985) (quoting Monell v. New York City Dept. of Social Services, 436
U.S. 658, 690, n. 55 (1978)). 	Federal courts have uniformly held that district attorneys’
offices in Colorado, and their employees sued in their official capacities, are entitled to
Eleventh Amendment immunity. 	Carbajal v. McCann, 808 F. App’x 620, 638 (10th Cir.
2020) (“[Tenth Circuit] binding precedent hold that district attorneys’ offices in Colorado
enjoy Eleventh Amendment immunity.”); Romero v. Boulder Cnty. DA’s Off., 87 F. App’x
696, 698 (10th Cir. 2004) (“[D]istrict attorn[ies] [are] state officer[s] under Colorado law.”);
Rozek v. Topolnicki, 865 F.2d 1154, 1158 (10th Cir. 1989) (holding a Colorado Office of
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the District Attorney was an agency of the state and therefore entitled to Eleventh
Amendment immunity); Sanchez v. Hartley, 65 F. Supp. 3d 1111, 1126 (D. Colo. 2014)
(agreeing “with the weight of state and federal case law, and find[ing] that the District
Attorney’s Office is an arm of the State of Colorado, and thus protected from suit by the
Eleventh Amendment,” and collecting cases), aff’d in part, appeal dismissed in part, 810
F.3d 750 (10th Cir. 2016); Bragg v. Off. of the Dist. Atty., Thirteenth Jud. Dist., 704 F.
Supp. 2d 1032, 1067 (D. Colo. 2009) (“[T]he Court concludes that [the District Attorney’s
Office for the 13th Judicial District] is a state agency with the power to assert the defense
of sovereign immunity under the Eleventh Amendment.”); Musick v. Pickering, No. 05-cv-
01361-REB-OES, 2005 WL 2739028, at *2 (D. Colo. Oct. 24, 2005) (“[I]t is abundantly
clear that the District Attorney’s Office and [a deputy district attorney] in his official
capacity enjoy Eleventh Amendment immunity from plaintiff's federal claims.”).
Plaintiff appears to concede in his Complaint that Mr. Twining is a “state officer
whose authority emanates from the Colorado Constitution and state statutes.” [#41 at 9]
Plaintiff nevertheless argues that Mr. Twining’s actions were taken as a “municipal agent”
because the City and County of Denver deferred to or consulted with the district attorney’s
office regarding the retention of the money at issue. 	[#49 at 4-8] 	Accordingly, Plaintiff
argues that his claims against Mr. Twining in his official capacity are not directed at the
District Attorney’s office, but at the City and County of Denver. [See id. at 8]
Plaintiff alleges that Mr. Twining violated Plaintiff’s rights by making arguments on
behalf of the state in state court. 	[#41 at 4-5] 	To be sure, Mr. Twining’s prosecutorial
decisions may have had an impact on the City and County of Denver’s decision to retain
Plaintiff’s money. 	But the “entity of which [Mr. Twining] [wa]s an agent” remained the
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district attorney’s office while Mr. Twining advocated in court, and this is the entity that
Plaintiff seeks relief against. Graham, 473 U.S. at 165; [see also #41 at 19 (seeking “an
injunction” ordering “the Denver D.A.’s Office” to release and return Plaintiff’s funds); #49
at 9 (acknowledging that Plaintiff seeks an order for “a state agency to return confiscated
cash”)]. Plaintiff’s official capacity claims against Mr. Twining for his prosecutorial conduct
therefore function as claims against the district attorney’s office, and this Court must treat
them accordingly. 	Graham, 473 U.S. at 165-66. 	Tenth Circuit precedent establishes
district attorney offices in Colorado are entitled to Eleventh Amendment immunity, and
this Court is bound by that determination. Rozek, 865 F.2d at 1158; Carbajal, 808 F. App’x
at 638 (“[Tenth Circuit] binding precedent hold that district attorneys’ offices in Colorado
enjoy Eleventh Amendment immunity.”). 	The Court therefore finds that the Eleventh
Amendment bars Plaintiff’s claims against Mr. Twining in his official capacity unless an
exception applies.
There are two primary exceptions to the sovereign immunity doctrine: Congress
may abrogate a state’s Eleventh Amendment immunity, or a state may waive its sovereign
immunity and consent to be sued. 	Ruiz, 299 F.3d at 1181. Neither exception applies
here. Section 1983 “does not abrogate state sovereign immunity.” Wood, 414 F. App’x at
105 (citing Will, 491 U.S. at 71); See Ellis v. Univ. of Kansas Med. Ctr., 163 F.3d 1186,
1196 (10th Cir. 1998) (explaining that Congress did not abrogate Eleventh Amendment
immunity when it enacted 42 U.S.C. § 1983 (citing Quern v. Jordan, 440 U.S. 332, 345
(1979)). 	And Plaintiff does not argue that Colorado has consented to this suit. [see
generally #49]; see also Havens v. Colo. Dep’t of Corr., 897 F.3d 1250, 1260 (10th Cir.
2018) (explaining that the “onus is on [the plaintiff] to demonstrate that [the state’s]
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assertion of Eleventh Amendment sovereign immunity does not bar [the relevant] claim”
(collecting cases)).
Plaintiff does argue that his claim against Mr. Twining in his official capacity may
proceed pursuant to the Ex parte Young doctrine. The Ex parte Young doctrine provides
that, under appropriate circumstances, “[t]he Eleventh Amendment does not bar a suit
against state officials in their official capacities if it seeks prospective relief for the officials’
ongoing violation of federal law.” Harris v. Owens, 264 F.3d 1282, 1290 (10th Cir. 2001).
“Determining 	whether 	a 	request 	for 	injunctive 	relief 	is 	prospective 	requires 	a
‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal
law and seeks relief properly characterized as prospective.’” Buchheit v. Green, 705 F.3d
1157, 1159 (10th Cir. 2012) (quoting Verizon Md., Inc. v. Pub. Serv. Comm’n, 535 U.S.
635, 645 (2002)). “[The Ex parte Young doctrine] does not allow an award for monetary
relief that is the practical equivalent of money damages, even if this relief is characterized
as equitable.” ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1189 (10th Cir. 1998) (citing
Edelman v. Jordan, 415 U.S. 651, 668 (1974)), abrogated on other grounds as recognized
in Hill v. Kemp, 478 F.3d 1236, 1259 (10th Cir. 2007).
Plaintiff seeks the following injunctive relief: 	“[A]n injunction ordering . . . the
Denver D.A.’s Office . . . to release and return [Plaintiff’s] funds.” 	[#41 at 19] 	In sum,
Plaintiff alleges that Mr. Twining improperly withheld Plaintiff’s money by arguing in court
that it should be applied to his restitution award, and Plaintiff seeks an order that the
district attorney’s office return that money. 	This relief is not “properly characterized as
prospective,” Buchheit, 705 F.3d at 1159, but is “the practical equivalent of money
damages,” ANR Pipeline Co., 150 F.3d at 1189. 	The Court agrees with Plaintiff’s
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contention that cases seeking to “correct a previous wrong” may still fit within the Ex parte
Young if the case seeks bona fide prospective relief. 	[#49 at 8-9]; see also Opala v.
Watt, 454 F.3d 1154, 1158 (10th Cir. 2006) (“[T]he mere fact that [the plaintiff] was
seeking to ‘right a previous wrong’ d[oes] not disqualify the action from the Ex Parte
Young exception.”). 	Here, however, Plaintiff seeks to “correct [Mr. Twining’s] previous
wrong” through a court order that a state agency return funds owed to Plaintiff. 	[#41 at
19 (seeking “an injunction” ordering “the Denver D.A.’s Office” to release and return
Plaintiff’s funds); #49 at 9 (acknowledging that Plaintiff seeks an order for “a state agency
to return confiscated cash”)] 	Ex parte Young does not permit such relief. 	Hakeem v.
Kansas Dep’t of Hum. Servs., No. 22-3144, 2022 WL 16642268, at *5 (10th Cir. Nov. 3,
2022) (“Here, although [the plaintiff] characterizes the relief he seeks as injunctive,
equitable, and prospective, it is not. He seeks the return of funds that were previously
taken from him. He alleges no ongoing constitutional violations that can be remedied by
prospective, injunctive relief.”); see also Edelman, 415 U.S. at 668 (explaining that the Ex
parte 	Young 	doctrine 	did 	not 	permit 	an 	“award 	of 	monetary 	relief” 	that 	was
“indistinguishable in many aspects from an award of damages against the State” and
“measured in terms of a monetary loss resulting from a past breach of a legal duty on the
part of the defendant state officials”).
Accordingly, the Court finds that Plaintiff’s claims against Mr. Twining in his official
capacity are barred by the Eleventh Amendment, and respectfully RECOMMENDS that
such claims be DISMISSED WITHOUT PREJUDICE. 	See Brereton v. Bountiful City
Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (“A longstanding line of cases from this circuit
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holds that where the district court dismisses an action for lack of jurisdiction . . . the
dismissal must be without prejudice.”).
ii. 	Absolute Immunity
Mr. Twining next asserts that he has absolute immunity for the claims against him
in his individual capacity. [#44 at 3-6] “Absolute prosecutorial immunity is a complete bar
to a suit for damages under 42 U.S.C. § 1983.” 	Mink v. Suthers, 482 F.3d 1244, 1258
(10th Cir. 2007) (citing Imbler v. Pachtman, 424 U.S. 409, 419 n.13 (1976)). 	“[A]
prosecutor is entitled to absolute immunity for those actions that cast him in the role of an
advocate initiating and presenting the government’s case.” 	Id. at 1261. 	Put differently,
“prosecutors are absolutely immune for those activities ‘intimately associated with the
judicial phase of the criminal process.’” Id. at 1259 (quoting Imbler, 424 U.S. at 430). In
contrast, absolute immunity will not necessarily apply “when a prosecutor is not acting as
‘an officer of the court,’ but is instead engaged in other tasks, say, investigative or
administrative tasks.” Van de Kamp v. Goldstein, 555 U.S. 335, 342 (2009) (citing Imbler,
424 U.S. at 431, n.33).
Here, Plaintiff alleges that he filed a motion in state court for the money at issue to
be returned to him. [#41 at 3] The state court “ordered the prosecution to respond.” [Id.
at 4] Mr. Twining, on behalf of the state, filed a response arguing that the money should
not be returned to Plaintiff but should instead be applied to Plaintiff’s restitution balance.
[Id.] 	The state court determined that it lacked authority to apply the money to Plaintiff’s
restitution balance, but denied Plaintiff’s request for the money to be returned. 	[Id.]
Plaintiff appealed, and Mr. Twining “direct[ed]” or was otherwise involved in the appellate
briefing wherein the state again argued against a court order that the money be returned
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to Plaintiff. [Id. at 5] Plaintiff alleges that Mr. Twining should not have taken these actions,
but should have instead “instructed the [Denver Police Department] to release and return
[Plaintiff’s] funds.” 	[Id. at 9] 	The Court does not discern any other factual allegations
regarding Mr. Twining in Plaintiff’s Complaint.2 The Court finds that Mr. Twining is entitled
to absolute immunity for Plaintiff’s claims arising from these actions.
Plaintiff asserts that Mr. Twining, by arguing against the release of Plaintiff’s
money, was acting in an administrative capacity and therefore not entitled to prosecutorial
immunity. 	[#49 at 2-4] 	Plaintiff cites to cases where prosecutors were denied absolute
immunity in managing the disposition of seized property. 	[#49 at 4 (citing Coleman v.
Turpen, 697 F.2d 1341 (10th Cir. 1982) and Lavicky v. Burnett, 758 F.2d 468 (10th Cir.
1985)). 	Each of these cases involved prosecutors unlawfully disposing of the plaintiffs’
property outside of the context of the judicial process. In Coleman, the Tenth Circuit held
that a prosecutor did not have absolute immunity for claims arising when the Plaintiff’s
seized property (a camper and tools) was illegally sold to pay off a storage bill. 697 F.2d
at 1345-46. The court explained that the prosecutor was not acting as an advocate, but
2 The Court understands Plaintiff’s Complaint to allege that Mr. Twining’s involvement in
and authority over the funds terminated following the resolution of Plaintiff’s motion and
appeal. [See, e.g., #41 at 9 (alleging that “the prosecuting attorney in a criminal case has
the authority to direct the Custodian of Property for the [Denver Police Department] to
retain any personal property seized or held as evidence in any pending or prospective
trial, until final disposition of the criminal charges and/or the conclusion of the appeals in
a case.”)] 	Plaintiff specifically alleges that, following the Colorado Supreme Court’s
refusal to review the denial of Plaintiff’s motion for the return of his property, Denver had
a duty to release Plaintiff’s funds and that this “duty to return the funds was not
constrained by the courts or the Denver D.A.’s office in any way.” [Id. at 13] Similarly, in
his briefing, Plaintiff argues that: 	“[Mr.] Twining had the ultimate decision-making
authority regarding the retention and/or disposition of [Plaintiff’s] cash throughout the
course of the criminal proceedings . . . . However, following the Supreme Court’s refusal
to resolve [Plaintiff’s] request for the return of his money, [Commander] Chuck possessed
the authority to release the funds.” [#47 at 11]
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as an administrator.3 	Id. at 1346. 	Similarly, in Lavicky the prosecutor allowed other
individuals to take parts that did not belong to them from the plaintiff’s seized truck before
returning the truck to the plaintiff, leaving the truck “essentially stripped.” 758 F.2d at 472.
The Tenth Circuit, relying on Coleman, determined that this management of seized
property by the prosecutor did not fall within his “prosecutorial role” because the
prosecutor “was acting as an administrator, not as an advocate” with respect to the post-
trial disposition of the truck. 	Id. at 476 (quoting Coleman, 697 F.2d at 1346). 	In both
cases, the prosecutors’ actions took place outside of the courtroom and were not subject
to judicial supervision.
Mr. Twining’s court-related actions are distinguishable from the extra-judicial
conduct at issue in Coleman and Lavicky. As opposed to disposing of Plaintiff’s property
through extra-judicial avenues, Mr. Twining’s allegedly unlawful conduct consisted of
formulating arguments to be considered by state courts. 4 	These arguments revolved
around the issue of restitution, which is part of Plaintiff’s sentence under Colorado law.
People v. Dunlap, 222 P.3d 364, 368 (Colo. App. 2009) (“[R]estitution is part of a
defendant’s sentence.”). 	Although Mr. Twining’s actions took place post-conviction,
“[a]bsolute immunity applies to the adversarial acts of prosecutors during post-conviction
proceedings . . . where the prosecutor is personally involved in the subsequent
proceedings and continues his role as an advocate.” 	Ellibee v. Fox, 244 F. App’x 839,
3 Notably, in the same case, the court held that the prosecutor was entitled to absolute
immunity regarding his role in keeping the plaintiff’s cash pending the plaintiff’s appeals
and future hearings, as this retention constituted “part of his presentation of the State’s
case.” 	Coleman, 697 F.2d at 1344. 	This was true even though the cash was not used
as evidence in the criminal case. Id. at 1343.
4 Indeed, Mr. Twining was ordered to respond to Plaintiff’s motion by a state court judge.
[#41 at 4]
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844 (10th Cir. 2007) (quoting Spurlock v. Thompson, 330 F.3d 791, 799 (6th Cir. 2003)).
Mr. Twining’s alleged actions—making arguments on behalf of the state in response to
Plaintiff’s motions and appeals in his criminal case—are plainly “intimately associated
with the judicial phase of the criminal process” and were taken in the role of an advocate. 5
Imbler, 424 U.S. at 430. 	Absolute immunity therefore bars Plaintiff’s suit for damages 6
against Mr. Twining in his individual capacity for his actions taken in state court and with
respect to Plaintiff’s appeal.
Accordingly, the Court finds that Plaintiff’s claims against Mr. Twining in his
individual capacity are barred by absolute prosecutorial immunity, and respectfully
RECOMMENDS that such claims be DISMISSED WITHOUT PREJUDICE. 7
B. 	The Denver Motion
Having determined that Plaintiff’s claims against Mr. Twining (in both his official
and individual capacities) should be dismissed, the Court turns to Plaintiff’s claims against
Denver and Commander Chuck.
i. 	Fourth Amendment Claim
5 Again, the Court does not discern any factual allegations that Mr. Twining took action
with respect to Plaintiff’s property besides arguing in state court that it be applied toward
Plaintiff’s restitution balance.
6 “Under § 1983, a plaintiff cannot sue an official in their individual capacity for injunctive
or declaratory relief.” 	Chilcoat v. San Juan Cnty., 41 F.4th 1196, 1214 (10th Cir. 2022)
(citing Brown v. Montoya, 662 F.3d 1152, 1161 n.5 (10th Cir. 2011)).
7 “A dismissal with prejudice is appropriate when the defendants are immune from suit
and further amendment of the plaintiff's complaint would be futile.” 	Gabriel v. El Paso
Combined Cts., 842 F. App’x 231, 235 (10th Cir. 2021). 	While Plaintiff’s current
allegations regarding Mr. Twining only relate to actions taken in his role as an advocate,
see supra notes 2 & 5, it is not clear to the Court that any further amendment on this issue
would be futile. See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (holding
that when the plaintiff is proceeding pro se, dismissal with prejudice is only appropriate
“where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would
be futile to give him an opportunity to amend” (quotation omitted)).
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Plaintiff asserts a claim of “Unreasonable Seizure/Deprivation of Property in
Violation of the Fourth Amendment.” 	[#41 at 8] 	The Fourth Amendment protects “[t]he
right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV. 	The Supreme Court has
recognized that “[t]he ‘basic purpose of this Amendment . . . is to safeguard the privacy
and 	security 	of 	individuals 	against 	arbitrary 	invasions 	by 	governmental 	officials.’”
Carpenter v. United States, 585 U.S. 296, 303 (2018) (quoting Camara v. Mun. Ct. of City
and Cnty. of San Francisco, 387 U.S. 523, 528 (1967)). Denver and Commander Chuck
argue that Plaintiff has failed to state a claim under the Fourth Amendment. 	[#43 at 9]
The Court agrees.
Plaintiff’s Complaint includes no allegations regarding the facts or circumstances
surrounding the seizure of his money, and nowhere does Plaintiff allege that the seizure
itself was unlawful. [See #41] Instead, Plaintiff alleges that the continued retention of his
funds, as opposed to the seizure itself, has violated his Fourth Amendment rights. [#41
at 8-14] The Tenth Circuit, however, has explained that claims “related to the continued
retention of [the plaintiff’s] property, as opposed to the initial seizure,” do not arise under
the Fourth Amendment. Snider v. Lincoln Cnty. Bd. of Cnty. Comm’rs, 313 F. App’x 85,
92-93 (10th Cir. 2008). Instead, in cases that “involve both the seizure and detention of
personal property,” courts are to “analyze the propriety of the initial seizure by police
under the Fourth Amendment,” whereas the “ultimate disposition of the property [must]
comply with the protections of procedural due process.” Id. at 93 (citing Winters v. Bd. of
County Comm’rs, 4 F.3d 848, 853, 856 (10th Cir.1993)); see also Kripp v. Luton, 466 F.3d
1171, 1173 (10th Cir. 2006) (distinguishing Fourth Amendment claim regarding illegal
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search and seizure from claim alleging deprivation of property in forfeiture process, which
was “essentially a . . . due process claim alleging procedural and substantive due process
violations from the search, seizure and subsequent forfeiture proceeding”).
This approach is supported across the Circuits. 	Indeed, one district court has
observed that: “Every single Circuit that has either squarely ruled on or briefly considered
this issue has found that the prolonged retention of lawfully seized property does not
implicate the Fourth Amendment's protection against unreasonable seizures.” Cameron
v. D.C., No. 21-CV-2908 (APM), 2022 WL 3715779, at *3-4 (D.D.C. Aug. 29, 2022)
(collecting cases, including the Tenth Circuit’s decision in Snider v. Lincoln County); see
also Denault v. Ahern, 857 F.3d 76, 84 (1st Cir. 2017) (“To the extent a plaintiff may
challenge on federal constitutional grounds the government’s retention of personal
property after a lawful initial seizure in circumstances such as these, that challenge
sounds in the Fifth Amendment rather than in the Fourth Amendment.”), superseded by
rule on other grounds as recognized in Gonpo v. Sonam’s Stonewalls & Art, LLC, 41 F.4th
1, 10 (1st Cir. 2022); Shaul v. Cherry Valley-Springfield Cent. Sch. Dist., 363 F.3d 177,
187 (2d Cir. 2004) (“Where . . . an initial seizure of property was reasonable, defendants'
failure to return the items does not, by itself, state a separate Fourth Amendment claim
of unreasonable seizure.”); Lee v. City of Chicago, 330 F.3d 456, 466 (7th Cir. 2003)
(“Once an individual has been meaningfully dispossessed, the seizure of the property is
complete, and once justified by probable cause, that seizure is reasonable. The [Fourth]
amendment then cannot be invoked by the dispossessed owner to regain his property.”).
Because Plaintiff does not challenge the initial seizure of his funds but only their
extended retention, the Court finds that Plaintiff has failed to state a claim under the
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Fourth Amendment. 	The Court therefore respectfully RECOMMENDS that Denver’s
Motion be GRANTED to the extent that it seeks dismissal of Plaintiff’s Fourth Amendment
claim.
ii. 	Due Process Claims
Plaintiff next asserts substantive and procedural due process claims regarding the
retention of his funds. 	[#41 at 14-18] 	Property rights are protected by the due process
clause of the Fourteenth Amendment, which provides, “nor shall any State deprive any
person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV,
§ 1. 	“The Due Process Clause encompasses two distinct forms of protection: (i)
procedural due process, which requires a state to employ fair procedures when depriving
a person of a protected interest; and (ii) substantive due process, which guarantees that
a state cannot deprive a person of a protected interest for certain reasons.” 	ETP Rio
Rancho Park, LLC v. Grisham, 522 F. Supp. 3d 966, 1018 (D.N.M. 2021); see also
Browder v. City of Albuquerque, 787 F.3d 1076, 1078 (10th Cir. 2015) (“The Supreme
Court has interpreted [the Fourteenth Amendment] as guaranteeing not only certain
procedures when a deprivation of an enumerated right takes place (procedural due
process), but also as guaranteeing certain deprivations won’t take place without a
sufficient justification (substantive due process).”).
a. 	Substantive Due Process
The Court first considers Plaintiff’s substantive due process claim. “A violation of
substantive due process may arise in two ways—from (1) legislative acts that infringe on
a fundamental right, or (2) official conduct that deprives a person of life, liberty, or property
in a manner so arbitrary as to shock the judicial conscience.” Lindsey v. Hyler, 918 F.3d
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1109, 1115 (10th Cir. 2019). 	Plaintiff’s Complaint, which alleges a deprivation through
official conduct as opposed to legislative acts, must therefore satisfy the “shock-the-
conscience” standard. 	“This standard is exacting.” 	Id. at 1116. 	“‘[O]nly the most
egregious official conduct can be said to be arbitrary in the constitutional sense,’” and “not
even 	‘[i]ntentionally 	or 	recklessly 	causing 	injury 	through 	the 	abuse 	or 	misuse 	of
government power is [] enough.’” Id. (quoting Onyx Props., LLC v. Bd. of Cnty. Comm’rs,
838 F.3d 1039, 1048-49 (10th Cir. 2016)). 	Instead, “[t]he plaintiff must demonstrate a
degree of outrageousness and a magnitude of potential or actual harm that is truly
conscience shocking.” Camuglia v. City of Albuquerque, 448 F.3d 1214, 1222-23 (10th
Cir. 2006) (quoting Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir. 1995)). 	Tenth Circuit
precedent “recognize[s] a [Section] 1983 claim for a violation of Fourteenth Amendment
substantive due process rights [only] in the narrowest of circumstances.” Becker v. Kroll,
494 F.3d 904, 922 (10th Cir. 2007).
While Plaintiff does allege a potential “misuse of government power,” the Court
finds that the alleged conduct does not shock the judicial conscience. 	Plaintiff alleges
that Denver, through its final policymakers including Commander Chuck, has improperly
retained $3,406.00 of Plaintiff’s money. [See #41 at 3-4] There is no allegation that the
funds were improperly seized or disposed of. Plaintiff further alleges that the retention of
the funds was rooted in a desire to apply the funds to Plaintiff’s restitution balance, [Id. at
4]—a “reasonable justification in the service of a legitimate governmental objective.”
Browder, 787 F.3d at 1078-79 (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846
(1998)). Plaintiff also alleges that the length of the delay has been exacerbated by legal
uncertainty 	in 	Colorado 	state 	courts, 	[#41 	at 	4-6], 	mitigating 	the 	“degree 	of
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outrageousness” of any hesitancy to act in the face of this uncertainty. 	Camuglia, 448
F.3d at 1222.
Moreover, Plaintiff has failed to allege that the magnitude of potential or actual
harm caused by the retention of his funds is one of constitutional proportions. 	Again, a
plaintiff bringing a substantive due process claim based on official conduct must
demonstrate both “a degree of outrageousness” and “a magnitude of potential or actual
harm” that is conscience shocking. Camuglia, 448 F.3d at 1222-23. Here, Plaintiff alleges
that $3,406.00 of his money has been wrongfully retained. 	[#41 at 1-2] 	Certainly, the
retention of $3,406.00 of one’s funds is a major inconvenience. 	In some cases, the
extended inability to access such a sum may amount to a conscience-shocking injury. 8
But Plaintiff has not alleged any harm caused by the retention of his money besides the
fact of its retention, and the Court finds that, without more, the actual or potential harm of
Plaintiff’s inability to access $3,406.00 does not shock the judicial conscience. 	See
Seymour v. Garfield Cnty., 580 F. Supp. 3d 1039, 1057 (D. Utah 2022) (finding that the
harms of “temporary dispossession of property” and “illegal downloading of sensitive
financial documents” were not conscience shocking).
Thus, because neither the conduct at issue nor the harm it allegedly caused meets
the “rigorous standard” applied to substantive due process claims, Becker, 494 F.3d at
8 For example, an individual may reasonably rely on such a sum for essentials such as
rent, food, or medical necessities. 	The Court does not cast doubt on the ability of such
an individual to plausibly allege that the magnitude of the potential or actual harm caused
by an arbitrary retention of this money rises to a conscience-shocking level. 	The Court
simply finds that Plaintiff has made no allegation of a conscience-shocking harm in this
case.
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923, the Court respectfully RECOMMENDS that Denver’s Motion be GRANTED to the
extent that it seeks dismissal of Plaintiff’s substantive due process claim.
b. 	Procedural Due Process
The Court finally turns to Plaintiff’s procedural due process claim. “Procedural due
process imposes constraints on governmental decisions which deprive individuals of
‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth
or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (quotations
omitted). The Tenth Circuit has “held that, ‘[t]o assess whether an individual was denied
procedural due process, courts must engage in a two-step inquiry: (1) did the individual
possess a protected interest such that the due process protections were applicable; and,
if so, then (2) was the individual afforded an appropriate level of process.’” 	Brown v.
Montoya, 662 F.3d 1152, 1167 (10th Cir. 2011) (quoting Merrifield v. Bd. of Cnty.
Comm’rs, 654 F.3d 1073, 1078 (10th Cir. 2011)). The Denver Motion does not appear to
challenge either of these two-prongs, but instead argues that: 	Plaintiff has failed to
adequately allege a municipal liability claim against Denver [#43 at 7-8], Commander
Chuck is entitled to qualified immunity [id. at 9-11]; Plaintiff’s claim is barred due to the
existence of an adequate state remedy [id. at 11]; and Plaintiff’s claim is barred by the
statute of limitations [id. at 6-7]. The Court considers each argument in turn.
To the extent that Plaintiff asserts this claim against Denver, Denver argues that
Plaintiff’s Complaint does not adequately allege a theory of municipal liability. [#43 at 7-
8] “[M]unicipalities and municipal entities . . . are not liable under 42 U.S.C. § 1983 solely
because their employees inflict injury on a plaintiff.” 	Fofana v. Jefferson Cnty. Sheriff’s
Off., No. 11-cv-00132-BNB, 2011 WL 780965, at *2 (D. Colo. Feb. 28, 2011) (citing Monell
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v. New York City Dep’t of Social Servs., 436 U.S. 658, 694 (1978); Hinton v. City of
Elwood, 997 F.2d 774, 782 (10th Cir. 1993)). Instead, “[t]o hold a municipality liable under
§ 1983, a plaintiff must prove (1) the existence of a municipal policy or custom by which
the plaintiff was denied a constitutional right and (2) the policy or custom was the moving
force behind the constitutional deprivation.” Crittenden v. City of Tahlequah, 786 F. App'x
795, 800 (10th Cir. 2019) (citing Monell, 436 U.S. at 694). A municipal policy or custom
may take the form of:
(1) 	a 	formal 	regulation 	or 	policy 	statement; 	(2) 	an 	informal 	custom
amounting to a widespread practice that, although not authorized by written
law or express municipal policy, is so permanent and well settled as to
constitute a custom or usage with the force of law; (3) the decisions of
employees with final policymaking authority; (4) the ratification by such final
policymakers of the decisions—and the basis for them—of subordinates to
whom authority was delegated subject to these policymakers’ review and
approval; or (5) the failure to adequately train or supervise employees, so
long as that failure results from deliberate indifference to the injuries that
may be caused.
Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (quotations and alteration
omitted). Plaintiff argues that he states a claim for municipal liability under the following
theories: formal regulation, final policymaker, ratification, and failure to train. [#47 at 7-
13]
Denver argues that Plaintiff’s Complaint relies exclusively on the “final policymaker
theory,” yet only provides “conclusory statements” that the individual Denver Defendants
had final policymaking authority. 	[#43 at 8] 	Denver relatedly argues that Plaintiff has
failed to allege that “a final policymaker made the decision not to return the money.” [Id.]
While the Court agrees that Plaintiff’s Complaint relies on the final policymaker theory,9
9 In briefing, Plaintiff asserts that he has also adequately alleged municipal liability under
the formal regulation, final policymaker, ratification, and failure to train theories. [#47 at
7-13] 	As for the formal regulation theory, Plaintiff does identify formal written municipal
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the Court finds that Plaintiff’s allegations are not conclusory. In the context of evaluating
a Complaint’s allegation of action by a final policymaker, the Tenth Circuit has clarified
that in order to state a claim, “[a]t a minimum, [a plaintiff’s] complaint must identify [the]
policy-makers and the specific actions they took that resulted in the deprivation of [the
plaintiff’s constitutional] rights.” London v. Beaty, 612 F. App’x 910, 914 (10th Cir. 2015).
Plaintiff 	has 	done 	this. 	Plaintiff’s 	Complaint 	alleges 	that 	the 	following 	municipal
employees have final policymaking authority regarding the disposition of seized property:
the Commander of the Homicide Unit for the Denver Police Department (the “Homicide
Commander”); the Custodian of Property for the Department of Safety and the Denver
Police Department (the “Custodian”); and Commander Chuck. 10 	[#41 at 12] 	Plaintiff
supports these allegations with citations to municipal policy granting the identified
individuals responsibility over seized property or otherwise requiring consultation with
these individuals before returning the property. 	[id. at 11-12]; see also Crowson v.
Washington Cnty., 983 F.3d 1166, 1191 (10th Cir. 2020) (explaining that a “municipality
may not escape liability by acting through twenty hands instead of two”). 	Plaintiff has
alleged that, together, these individuals had the final authority over property retention
decisions, and that Denver offered no meaningful avenues of review of their decisions.
policy in his Complaint, but he consistently alleges that the policy requires the return of
his property. [See #41 at 9-11] Thus, the identified formal policy could not be the “moving
force” behind the deprivation of Plaintiff’s property. 	And Plaintiff’s Complaint does not
allege any facts sufficient to state a claim under a ratification or failure to train theories,
as it consistently alleges that the individual Denver Defendants are final policymakers (as
opposed to subordinates requiring ratification) and fails to identify any lapse in training or
supervision of these decision makers. [See, e.g., #41 at 12, 14]
10 While Plaintiff only names the Custodian and the Homicide Commander as unidentified
“Doe Defendants,” Denver makes no argument that this insufficiently identifies these
policymakers at the motion to dismiss stage.
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See Randle v. City of Aurora, 69 F.3d 441, 448-50 (10th Cir. 1995) (remanding a matter
for further development on whether certain city officials exercised final policymaking
authority in a particular area when the level of constraint placed on those officials was
unclear and the officials’ decisions in that area were not subject to review); Flanagan v.
Munger, 890 F.2d 1557, 1569 (10th Cir. 1989) (holding that an individual was a final
policymaker because, “for all intents and purposes the [individual’s] discipline decisions
are final, and any meaningful administrative review is illusory.”); Starrett v. Wadley, 876
F.2d 808, 818-19 (10th Cir.1989) (attributing an act of an induvial to the county because
the individual “had final authority to set employment policy as to the hiring and firing of his
staff” and the county did not offer “meaningful avenues of review” of these actions). The
Court finds that, at this stage in the proceedings, Plaintiff has met the pleading “minimum”
of identifying the relevant policymakers. 	London, 612 F. App’x at 914. 	And Plaintiff’s
Complaint identifies the actions that these policymakers took—deciding to retain Plaintiff’s
property. 	[#41 at 13] 	This allegation is plausibly supported by the simple fact that
Plaintiff’s property has not been returned to him by those responsible for its retention and
disposal. 11 “Although [D]efendants may establish that the alleged actions did not in fact
occur or that they were not within the authority of [D]efendants, at this stage in the
litigation dismissal is inappropriate.” Wilson v. Civ. Town of Clayton, 839 F.2d 375, 381
11 Of course, there are other plausible inferences that may be drawn from this fact, such
as an inference that the decisionmakers or those responsible for its return simply
neglected their duties. 	However, at this stage the Court must draw all reasonable
inferences in favor of Plaintiff, and the Court finds that Plaintiff’s allegation that Denver
has continued to retain his property despite Plaintiff’s fairly extensive efforts to have it
returned plausibly supports the inference that the final policymakers identified by Plaintiff
have made the decision to retain Plaintiff’s property.
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(7th Cir. 1988). The Court therefore finds that Plaintiff’s Complaint adequately alleges a
theory of municipal liability against Denver on Plaintiff’s procedural due process claim.
As for Plaintiff’s procedural due process claim against Commander Chuck,
Commander Chuck asserts that he is entitled to qualified immunity. “Qualified immunity
‘protects government officials 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.”’” 	Weise v. Casper, 593 F.3d 1163, 1166 (10th Cir. 2010)
(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). To defeat a claim of qualified
immunity, a plaintiff must demonstrate: (1) that the facts alleged make out a violation of a
constitutional right, and (2) that the right at issue was “clearly established” at the time of
the defendant’s alleged misconduct. See Thomas v. Durastanti, 607 F.3d 655, 662 (10th
Cir. 2010). With regard to the second prong of the qualified immunity analysis, the plaintiff
must demonstrate that the constitutional right was clearly established at the time of the
misconduct. Thomas, 607 F.3d at 662. As the Tenth Circuit has explained:
A clearly established right is one that is sufficiently clear that every
reasonable official would have understood that what he is doing
violates that right. 	Although plaintiffs can overcome a qualified-
immunity defense without a favorable case directly on point, existing
precedent must have placed the statutory or constitutional question
beyond debate. 	The dispositive question is whether the violative
nature of the particular conduct is clearly established. . . . Qualified
immunity protects all but the plainly incompetent or those who
knowingly violate the law.
Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quotations and citations omitted).
Commander 	Chuck 	argues 	that 	Plaintiff’s 	Complaint 	“does 	not 	allege 	[that
Commander Chuck] personally seized or withheld the money from [Plaintiff],” and that, at
most, Plaintiff’s Complaint merely alleges that Commander Chuck failed to respond to
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Plaintiff’s letter seeking the return of his money. [#43 at 9-10] Commander Chuck argues
that “[t]here is no precedent showing that a commander violates a person’s rights simply
because he did not respond to the person’s demand letters.” [Id. at 10]
Plaintiff’s claim, however, does not arise from Commander Chuck’s failure to
respond to Plaintiff’s letter. Instead, Plaintiff alleges that his funds, which were not used
as evidence, have been retained long after the termination of his criminal case. [See #41
at 18] 	Plaintiff further alleges that Commander Chuck, as one of the plausibly alleged
final policymakers for Denver with respect to the disposition of Plaintiff’s funds, has failed
to return those funds, and that Plaintiff has no process to challenge that decision. 	[See
id. at 15-16, 18] 	It has been clearly established since at least 1985 that this course of
conduct constitutes a due process violation. 	Coleman v. Turpen, 697 F.2d 1341 (10th
Cir. 1982) 	(explaining that the retention of a plaintiff’s funds following his criminal case
“is a deprivation within the meaning of the fourteenth amendment,” that the plaintiff “has
a cause of action under section 1983 unless the State has provided him with due
process,” and that “[i]f [the plaintiff] has had no opportunity to show that the property was
not used as evidence against him and should not be retained under [state law], he has
been deprived of his property without due process”); see also Lavicky v. Burnett, 758 F.2d
468, 472 (10th Cir. 1985) (recognizing that Coleman “held that a prisoner may assert a
[Section] 1983 cause of action for deprivation of property without due process when the
state retained money, not used as evidence, that it had seized from the prisoner”).12
12 The Court notes that Plaintiff did not cite Coleman or Lavicky in response to
Commander Chuck’s assertion of qualified immunity, [see #47 at 14-16], and that a
plaintiff bears the burden of citing to clearly established law. See Thomas v. Durastanti,
607 F.3d 655, 669 (10th Cir. 2010). However, the Tenth Circuit has reversed a trial court’s
dismissal of a pro se plaintiff’s claims—where the trial court found the plaintiff had failed
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Because Plaintiff has adequately alleged that Commander Chuck has played an
active role in the decision to retain of Plaintiff’s funds, and it is clearly established that this
retention without process violated Plaintiff’s due process rights, the Court finds that
Commander Chuck is not entitled to qualified immunity for Plaintiff’s claim against him.
Denver and Commander Chuck next assert that Plaintiff’s procedural due process
claim must fail because Plaintiff currently has an adequate state remedy. [#43 at 11] An
“unauthorized intentional deprivation of property by a state employee does not constitute
a violation of the procedural requirements of the Due Process Clause of the Fourteenth
Amendment if a meaningful post[-]deprivation remedy for the loss is available.” Hudson
v. Palmer, 468 U.S. 517, 533 (1984); See also Akervik v. Ray, 24 F. App’x 865, 869 (10th
Cir. 2001) (“[No] action [will] lie for the intentional deprivation of property if there is a
meaningful post[-]deprivation remedy for the loss available.”). 	Thus, for unauthorized
deprivations, a plaintiff’s complaint must allege facts sufficient to plausibly establish the
lack of an adequate post-deprivation state remedy. Hudson, 468 U.S. at 532-33; see also
Stengel v. N.M. Corr. Dep’t, 640 F. App’x 701, 704 (10th Cir. 2016) (affirming dismissal
where plaintiff did not allege that a taking was authorized, and did not allege the lack of
meaningful post-deprivation state remedies).
As an initial matter, this principle does not apply to Plaintiff’s claims against
Denver. 	The Tenth Circuit has explained that the existence of an adequate post-
to identify a case demonstrating his right was clearly established—by itself pointing to
caselaw sufficiently similar to the facts alleged and finding the plaintiff's right was clearly
established. 	See Jordan v. Jenkins, 73 F.4th 1162, 1174 & n.10 (10th Cir. 2023)
(recognizing that the plaintiff did not cite the caselaw that the Court relied on, but
instructing courts to “use its full knowledge of its own and other relevant precedents” in
engaging in a qualified immunity analysis (quotation omitted)); 	Ali v. Duboise, 763 F.
App’x 645, 651-52 (10th Cir. 2019).
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deprivation state remedy is “irrelevant and does not bar a [section] 1983 claim” when the
deprivation is “pursuant to an affirmatively established or de facto policy, procedure, or
custom.” 	Walters v. Corr. Corp. Of Am., 119 F. App’x 190, 192 (10th Cir. 2004)
(quotations omitted). 	“[S]tating a claim for municipal liability by definition establishes a
policy, procedure, or custom.” 	Lops v. Haberman, No. CV 00-1268 JP/LFG, 2001 WL
37125205, at *1 (D.N.M. Mar. 7, 2001) (citing Wilson, 839 F.2d at 380). 	As discussed
above, Plaintiff has adequately alleged that the improper decision to retain his funds with
no process can be attributed to Denver because the decision was made by Denver’s final
policymakers. Accordingly, such a deprivation was pursuant to a de facto policy. See id.
at *1-2 (finding that the existence of an adequate post-deprivation remedy did not require
dismissal of a plaintiff’s procedural due process claim when the plaintiff had adequately
alleged that the employee’s actions had been made a de facto policy through ratification
by a policymaker); see also New Windsor Volunteer Ambulance Corps, Inc. v. Meyers,
442 F.3d 101, 115 (2d Cir. 2006) (explaining that adequate post-deprivation remedies do
not bar claims “where the deprivation was caused by high-ranking officials who had final
authority over the decision-making process” (quotation omitted)).
To the extent that Plaintiff’s claims against Commander Chuck in fact rest on
unauthorized actions, 13 the Court still declines to hold that Plaintiff’s claim against
Commander Chuck must be dismissed due to the existence of an adequate state remedy.
Plaintiff alleges that there is no process by which an individual may seek review of
decisions to retain seized property following the conclusion of a criminal case. 	[#41 at
13 Again, the Court has simply found that Plaintiff has adequately alleged that Commander
Chuck acted as a final policymaker in retaining Plaintiff’s funds. Any final determination
on this question must await further factual and legal development.
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17] 	Plaintiff further alleges that he attempted to regain his property through a motion in
state court, but that the Colorado Court of Appeals held that the district court lacked
jurisdiction over such a motion. [Id. at 5] Plaintiff sought review by the Colorado Supreme
Court, but his petition for review was denied. 	[Id. at 6] 	This adequately alleges that
Plaintiff has been denied an adequate state remedy.
Denver and Commander Chuck argue that “months after [Plaintiff] filed his original
complaint, the Colorado Supreme Court ruled that convicted defendants may move for
the return of lawfully seized property while postconviction proceedings are pending.” [#43
at 11 (citing Woo v. El Paso Cnty. Sheriff’s Off., 528 P.3d 899 (Colo. 2022)] 	Plaintiff,
however, alleges that he attempted this precise remedy, and his motion was dismissed
for lack of jurisdiction. [#41 at 5-6] Denver and Commander Chuck do not cite, and the
Court does not find, support for the notion that a state may extinguish a valid procedural
due process claim months after it was filed by creating or otherwise making available a
remedy that the plaintiff has already attempted. To the contrary, in these situations the
state’s action becomes “complete” when “it provides or refuses to provide a suitable
postdeprivation remedy.” 	Hudson, 468 U.S. at 534; see also Reed v. Goertz, 598 U.S.
230, 236 (2023) (explaining that a procedural due process claim is “complete” when “the
State fails to provide due process” (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)).
Here, 	Plaintiff 	was 	explicitly 	and 	directly 	refused 	the 	postdeprivation 	remedy 	that
Defendants assert is now available, and his request for review of that refusal by the
Colorado Supreme Court was denied. 	By the time that the Colorado Supreme Court
apparently recognized the availability of the remedy that Plaintiff was denied, the violation
had already occurred, and Plaintiff’s claim for that violation of procedural due process is
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not impacted by the state’s course-reversal made after Plaintiff had filed the action before
the Court.
Finally, Denver and Commander Chuck assert that Plaintiff’s procedural due
process claim is barred by the statute of limitations. [#43 at 6-7] “[A]lthough a statute of
limitations bar is an affirmative defense, it may be resolved on a Rule 12(b)(6) motion to
dismiss ‘when the dates given in the complaint make clear that the right sued upon has
been extinguished.’” Radloff-Francis v. Wyo. Med. Ctr., Inc., 524 F. App’x 411, 413 (10th
Cir. 2013) (quoting Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th
Cir. 1980)); see also Bullington v. United Air Lines Inc., 186 F.3d 1301, 1310 n.3 (10th
Cir. 1999) (“Rule 12(b)(6) is a proper vehicle for dismissing a complaint that, on its face,
indicates the existence of an affirmative defense such as noncompliance with the
limitations period.”), implicitly overruled on other grounds as recognized by Boyer v.
Cordant Techs., 316 F.3d 1137, 1140 (10th Cir. 2003). There is also authority supporting
the ability of a court to consider, for limitations purposes, dates contained in documents
proper for judicial notice at the motion to dismiss stage. 	See Wei v. Univ. of Wyo., 759
F. App’x 735, 739-40 (10th Cir. 2019) (explaining that a district court was “entitled” to
“glean[] the date it found relevant for the limitation calculation by taking judicial notice” of
a particular court filing).
Plaintiff’s claims arise under Section 1983. 	[#41 at 1] 	“Section 1983 provides a
cause of action for ‘the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws’ by any person acting under color of state law.” Pierce v. Gilchrist,
359 F.3d 1279, 1285 (10th Cir. 2004) (quoting 42 U.S.C. § 1983). Because Section 1983
does not contain a statute of limitations, courts look to the corresponding state statute of
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limitations. See Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995) (“For section 1983
actions, state law determines the appropriate statute of limitations.”). 	“‘[T]he statute of
limitations for § 1983 actions brought in Colorado is two years from the time the cause of
action accrued,’ unless this period is equitably tolled.” 	Romero v. Lander, 461 F. App’x
661, 666 (10th Cir. 2012) (quoting Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir.
2006)).
To determine if Plaintiff’s action is barred by the statute of limitations, the Court
must first determine when Plaintiff’s action accrued. City & Cnty. of Denver v. Bd. of Cnty.
Cmm’rs of Adams Cnty., 543 P.3d 371, 377 (Colo. 2024) (“A statute of limitations without
an accrual date is like an analog clock without gears—it never begins to run.”). 	While
Colorado law governs the two-year statute of limitations for § 1983 actions, the Court
determines when the cause of action accrues under federal law. Braxton v. Zavaras, 614
F.3d 1156, 1159 (10th Cir. 2010).
As the Tenth Circuit has explained:
In general, under the federal discovery rule, claims accrue and the statute
of limitations begins to run when the plaintiff knows or has reason to know
of the existence and cause of the injury which is the basis of his action. In
particular, a civil rights action accrues when facts that would support a
cause of action are or should be apparent.
Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004) (citations and quotations
omitted); see also Romero, 461 F. App’x at 666. 	That is, “a civil rights action accrues
when the plaintiff knows or has reason to know of the injury which is the basis of the
action.” 	Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998) (quoting Baker v.
Board of Regents, 991 F.2d 628, 632 (10th Cir. 1993)). “Since the injury in a § 1983 case
is the violation of a constitutional right, such claims accrue when the plaintiff knows or
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should know that his or her constitutional rights have been violated.” Id. (quotations
omitted).
An accrual analysis in a Section 1983 case therefore “begins with identifying ‘the
specific constitutional right’ alleged to have been infringed”—here, a procedural due
process claim. McDonough v. Smith, 588 U.S. 109, 115 (2019) (quoting Manuel v. City
of Joliet, 580 U.S. 357, 370 (2017)). 	“A procedural due process claim consists of two
elements: (i) deprivation by state action of a protected interest in life, liberty, or property,
and (ii) inadequate state process.” 	Reed, 598 U.S. at 236. 	Such a claim is “‘complete’
only when ‘the State fails to provide due process.’” 	Id. (quoting Zinermon, 494 U.S. at
125)). 	Thus, the violation occurs when due process is refused, and a plaintiff’s claim
accrues “when the plaintiff knows or should know” of this refusal. City of Enid, 149 F.3d
at 1154.
Denver and Commander Chuck argue that “the government did not fail to provide
[Plaintiff] with due process until the Colorado Supreme Court denied his second petition
for writ of certiorari related to the denial of his motion for return of the money.” [#43 at 5];
see Reed, 598 U.S. at 236-37 (“If any due process flaws lurk in [the relevant state] law,
the state appellate process may cure those flaws[.]”). 	According to Colorado Supreme
Court filings, Plaintiff’s relevant petition for writ of certiorari was denied by that Court on
April 27, 2020. 14 	[#43-7 at 1] 	With the application of the prison mailbox rule, 15 Denver
14 The Court may take judicial notice of certain “documents and docket materials filed in
other courts,” as relevant to this case. Brickert v. Deutsche Bank Nat’l Tr. Co., 380 F.
Supp. 3d 1127, 1133 n.1 (D. Colo. 2019) (quoting Stan Lee Media, Inc. v. Walt Disney
Co., 774 F.3d 1292, 1298 n.2 (10th Cir. 2014)).
15 Under the prison mailbox rule, “an inmate who places a federal civil rights complaint in
the prison’s internal mail system will be treated as having ‘filed’ that complaint on the date
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and Commander Chuck assert that Plaintiff’s Complaint was filed on April 29, 2022—two
years and two days after the denial of Plaintiff’s petition for writ of certiorari. 	[#43 at 6]
Denver and Commander Chuck argue that Plaintiff’s procedural due process claim is
therefore barred, as it was filed two days late. [Id.]
Even accepting these dates for the purposes of this 12(b)(6) motion to dismiss, the
Court nevertheless declines to recommend dismissal of Plaintiff’s procedural due process
claim on limitations grounds. 	The focus of an accrual analysis is when the facts
supporting a claim became or should have become apparent to the plaintiff. Alexander,
382 F.3d at 1215; see also Smith v. City of Enid, 149 F.3d at 1154 (explaining that Section
1983 claims accrue “when the plaintiff knows or should know that his or her constitutional
rights have been violated”). 	The filings submitted for the Court’s review on this issue
indicate that Plaintiff, who was incarcerated, was proceeding pro se in state court when
seeking the return of his funds. [##43-1 (Plaintiff’s pro se Motion for Return of Property);
43-5 (Plaintiff’s pro se notice of appeal)] 	It is far from clear that Plaintiff, as an
incarcerated individual proceeding pro se, knew or should have known of the Colorado
Supreme Court’s April 27, 2020 order denying Plaintiff’s petition for writ of certiorari before
April 29, 2020. In similar contexts federal courts presume that mailed documents take at
least three days to reach their intended recipient. Cf. Lozano v. Ashcroft, 258 F.3d 1160,
1164 (10th Cir. 2001) (explaining, in the context of mailed EEOC right-to-sue letters, that
federal courts have presumed various receipt dates ranging from three to seven days
after the letter was mailed); Fed. R. Civ. P. 6(d) (adding three (3) days to the time periods
it is given to prison authorities for mailing to the court.” Price v. Philpot, 420 F.3d 1158,
1165 (10th Cir. 2005).
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prescribed by the Federal Rules when service of the triggering document is effectuated
by mail).
Plaintiff also argues in his response that his appeal related to his motion for the
return of property was not resolved “until April 29, 2020, when the mandate issued
affirming the Colorado Supreme Court’s denial of [Plaintiff’s] petition for a writ of
certiorari.” [#47 at 5-6] No copy of this mandate was included for the Court’s review, and,
in reply, Denver and Commander Chuck do not challenge Plaintiff’s assertion that the
mandate (as opposed to the order) controls the accrual analysis. 	[#48 at 3-4] 	This
provides further uncertainty regarding the accrual date of Plaintiff’s procedural due
process claim. Ultimately, the Court cannot determine from the face of the Complaint or
the documents properly before the Court that Plaintiff knew, or should have known, of the
state’s final refusal to provide him with due process before April 29, 2020 (two years prior
to the presumed filing date of Plaintiff’s Complaint). 	The Court therefore finds that
dismissal 	of 	Plaintiff’s 	procedural 	due 	process 	claim 	on 	limitations 	grounds 	is
inappropriate.16 Radloff-Francis, 524 F. App’x at 413.
Accordingly, 	for 	the 	reasons 	set 	forth 	above, 	the 	Court 	respectfully
RECOMMENDS that the Denver Motion be DENIED to the extent that it seeks dismissal
of Plaintiff’s procedural due process claims against Denver and Commander Chuck.
IV. 	CONCLUSION
16 Because the Court finds that dismissal of Plaintiff’s procedural due process claim is
inappropriate at this stage for the reasons stated, the Court does not consider the
application of the continuing violations doctrine or the repeated violations doctrine to this
claim.
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In sum, the Court respectfully RECOMMENDS that Mr. Twining’s Motion [#43] be
GRANTED and that the Denver Motion [#44] be GRANTED IN PART and DENIED IN
PART. Specifically, the Court respectfully RECOMMENDS that:
1. 	Plaintiff’s claims against Mr. Twining in his official capacity be DISMISSED
WITHOUT PREJUDICE based on Eleventh Amendment immunity;
2. 	Plaintiff’s claims against Mr. Twining in his individual capacity be DISMISSED
WITHOUT PREJUDICE based on absolute prosecutorial immunity;
3. 	Plaintiff’s Fourth Amendment claims against Denver and Commander Chuck be
DISMISSED for failure to state a claim;
4. 	Plaintiff’s substantive due process claims against Denver and Commander Chuck
be DISMISSED for failure to state a claim; and
5. 	The Denver Motion be DENIED to the extent that it seeks dismissal of Plaintiff’s
procedural due process claims against Denver and Commander Chuck.
The Clerk of Court is instructed to mail a copy of this Recommendation to Plaintiff.17
17 Within fourteen days after service of a copy of this Recommendation, any party may
serve and file written objections to the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations with the Clerk of the United States District Court for
the District of Colorado. 	28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla
(In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put
the district court on notice of the basis for the objection will not preserve the objection for
de 	novo 	review. 	“[A] 	party’s 	objections 	to 	the 	magistrate 	judge’s 	report 	and
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. 2121 East 30th Street, 73
F.3d 1057, 1060 (10th Cir. 1996). 	Failure to make timely objections may bar de novo
review by the district judge of the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations and will result in a waiver of the right to appeal from
a judgment of the district court based on the proposed findings of fact, legal conclusions,
and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-
80 (10th Cir. 1999) (holding that the district court’s decision to review magistrate judge’s
recommendation de novo despite lack of an objection does not preclude application of
“firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d
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DATED: July 18, 2024 	BY THE COURT:
_________________________
United States Magistrate Judge
901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain
portions of magistrate judge’s order by failing to object to those portions); Ayala v. United
States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to
appeal the magistrate judge’s ruling by failing to file objections). 	But see, Morales-
Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule
does not apply when the interests of justice require review).
s/ James P. O'Hara
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