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

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
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 #,
JANE/JOHN DOE #2, and
JANE/JOHN DOE #3,
Defendants.
ORDER
Before 	the 	Court 	is 	United 	States 	Magistrate 	Judge 	James 	P. 	O’Hara’s
Recommendation to grant Defendant Timothy Twining’s motion to dismiss, and to grant
in part and deny in part Defendants City and County of Denver and Mark Chuck’s motion
to dismiss. ECF No. 59 (Recommendation). No party objected to Magistrate Judge
O’Hara’s Recommendation. For the following reasons, the Court AFFIRMS and ADOPTS
the Recommendation as an order of this Court.
I. 	SUMMARY FOR PRO SE PLAINTIFF
Magistrate Judge O’Hara recommends that this Court dismiss without prejudice
your official- and individual-capacity claims against Mr. Twining based on Eleventh
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Amendment and absolute prosecutorial immunity, respectively. He also recommends that
your Fourth Amendment claims against Denver and Commander Chuck be dismissed
without prejudice for failure to state a claim; your substantive due process claims against
Denver and Commander Chuck be dismissed without prejudice for failure to state a claim;
and Denver’s motion be denied to the extent that it seeks dismissal of your procedural
due process claims against Denver and Commander Chuck.
At the end of his Recommendation, Magistrate Judge O’Hara advised that you had
14 days after service of the Recommendation to file a written objection. You did not file
an objection or otherwise respond within that window. As explained in more detail below,
the Court has reviewed the Recommendation and has determined that it is correct.
Therefore, your claims against Mr. Twining, and your Fourth Amendment and substantive
due process claims against Denver and Commander Chuck, are dismissed without
prejudice, which means that you may refile your claims, assuming that you can satisfy the
appropriate procedural and jurisdictional requirements. See Crowe v. Servin, 723 F. App’x
595, 598 (10th Cir. 2018) (“A dismissal without prejudice just means that the plaintiff isn’t
barred from refiling the lawsuit within the applicable limitations period.” (citations and
quotations omitted)). But your procedural due process claims against Denver and
Commander Chuck remain viable and will proceed.
II. 	RELEVANT FACTUAL & PROCEDURAL BACKGROUND
Plaintiff is currently incarcerated at the Bent County Correctional Facility. ECF No.
41 (Second Am. Compl.) at 2. Approximately $3,400 of Plaintiff’s money had been held
as evidence in a criminal case against him. Id. at 3. Following Plaintiff’s criminal trial, the
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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 to have the money returned. 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. In response, “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.
Plaintiff appealed the sentencing court’s order denying the release of the money.
Id. The Colorado Court of Appeals concluded that the sentencing court lacked jurisdiction
to order the return of his money and thus vacated all orders entered by the sentencing
court “to the extent they address[ed] [Plaintiff’s] request for return of the cash.” Id. Plaintiff
appealed again, but the Colorado Supreme Court denied his petition. Id.
Plaintiff then turned to the Denver City and County Municipal Code of Ordinances
and the Denver Police Department’s Operations Manual. Id. According to Plaintiff, those
documents establish that the Commander of the Major Crimes Division (Defendant Mark
Chuck), the Commanding Officer of the Homicide Unit, the Custodian of Property, and
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the Denver District Attorney’s Office were responsible for deciding whether to retain or
release property held as evidence in cases such as Plaintiff’s. Id. Plaintiff thus 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
was no legitimate basis to hold the funds. Id. at 7–8. Plaintiff did not receive a response
from Commander Chuck or any other Dever Police Department representative. Id. at 8.
Plaintiff filed his initial complaint on May 6, 2022, alleging that the failure to return
his money violated his constitutional rights. ECF No. 1. Plaintiff’s operative complaint
asserts Fourth Amendment, substantive due process, and procedural due process claims
against Defendants. ECF No. 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, ECF No. 43, and Mr. Twining filed his Motion to Dismiss Plaintiff’s Second
Amended Complaint on January 24, 2024. ECF No. 44. Plaintiff responded. ECF Nos.
47, 49. The Court referred these motions to dismiss to Magistrate Judge O’Hara for initial
determination. ECF No. 46. On July 18, 2024, Magistrate Judge O’Hara issued his
Recommendation. ECF No. 59.
III. 	ANALYSIS & ORDER
When—as is the case here—a party does not object to the Magistrate Judge’s
Recommendation, the Court “may review a magistrate [judge]’s report under any standard
it deems appropriate.” Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991)
(citing Thomas v. Arn, 474 U.S. 140, 150 (1985)). The Court is “accorded considerable
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discretion” when reviewing “unchallenged” recommendations. Id. The Court has reviewed
Magistrate Judge O’Hara’s thorough Recommendation and is satisfied that it is sound
and that there is no clear error on the face of the record.
Accordingly, 	the 	Court 	AFFIRMS 	and 	ADOPTS 	Magistrate 	Judge 	O’Hara’s
Recommendation, ECF No. 59, as an order of this Court. Defendants City and County of
Denver and Mark Chuck’s motion to dismiss, ECF No. 43, is GRANTED in part and
DENIED in part, and Defendant Twining’s motion to dismiss, ECF No. 44, is GRANTED.
DATED this 13th day of August 2024.
BY THE COURT:
_____________________________
Charlotte N. Sweeney
United States District Judge
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