Czajkowski v. Polis et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Maritza Dominguez Braswell
Civil Action No. 23–cv–01654–PAB–MDB
CONRAD CZAJKOWSKI,
Plaintiff,
v.
JARED POLIS, Governor,
JOE ROYBAL, El Paso County Sheriff, and
WILLIAM BAIN, Chief Judge 4th Judicial,
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Maritza Dominguez Braswell
This matter is before the Court on three Motions to Dismiss, filed by Defendant William
Bain ([“Bain MTD”], Doc. No. 31); Defendant Joe Roybal ([“Roybal MTD”], Doc. No. 33); and
Defendant Jared Polis ([“Polis MTD”], Doc. No. 47.) Plaintiff has not responded to any of the
Motions, and the time to do so has lapsed. After reviewing the Motions, briefing, and relevant
law, the Court RECOMMENDS that the three Motions to Dismiss be GRANTED.
PRO SE SUMMARY
The Court recommends dismissing all claims in your Second Amended Complaint for
several reasons. First, the Court does not have jurisdiction over your official capacity claims
because the Eleventh Amendment bars your claims against Defendants Bain and Polis, and
because the official capacity claims against Sheriff Roybal are moot.
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Second, you cannot bring individual capacity claims for monetary damages under RLUIPA, and
your First Amendment individual capacity claims are barred under the doctrines of absolute
immunity and qualified immunity. This is only a high-level summary of the Court’s
Recommendation. The full Recommendation, including information about your right to object to
it, is set forth below.
BACKGROUND
Colorado law requires that any individual who is arrested for a crime and remains in
custody be brought before a judge or magistrate judge within forty-eight hours of arrest. See
C.R.S. § 16-4-102(2)(a)(I). This requirement was changed from seventy-two hours to forty-eight
hours in 2022, and the change meant arrestees may have to appear before a judge over the
weekend. See id. The Fourth Judicial District Court implemented a revised schedule to include
Saturday advisements. (See Doc. No. 12 at 4.)
Plaintiff initiated this action on July 20, 2023, while in the custody of the El Paso County
Jail (“EPCJ”). (Doc. No. 4.) In his Second Amended Complaint, he asserts that on January 14,
March 18, April 15, and May 27, 2023—all Saturdays—he was set to attend court, but refused
because it conflicted with his Sabbath observance.1 (Doc. No. 12 at 4.) He further contends El
Paso County Sheriff’s Office (“EPSO”) employees threatened him with the loss of privileges if
he refused to cooperate with Saturday court appearances. (Id.) Plaintiff alleges that being
required to attend advisements on a Saturday is in conflict with his Jewish faith and a violation
1 The Court notes Plaintiff’s advisement hearings were in connection with multiple arrests. (See
Doc. No. 33-1.) Moreover, while the specific dates Plaintiff provides are not all accurate,
Plaintiff is correct in asserting that he was scheduled for advisement hearings on several
Saturdays in 2023. (See id. (showing Plaintiff was scheduled for advisement on January 28,
February 11, March 11, and May 27).)
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of his religious liberties, particularly because no court is held on Sundays, the religious holy day
observed by those of the Christian faith. (Id. at 5.)
Pursuant to 42. U.S.C. § 1983, Plaintiff asserts individual and official capacity claims
against: (1) William Bain, Chief Judge for the District Court of El Paso County; (2) Joe Roybal,
El Paso County Sheriff; and (3) Jared Polis, Governor of Colorado. (Id. at 12.) Plaintiff alleges
Defendants violated the First Amendment Free Exercise Clause and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, et seq. (Doc. No. 12 at 4.) He
seeks compensatory damages, punitive damages, and injunctive relief enjoining the court from
conducting proceedings from “Friday night thru Saturday night.”2 (Doc. No. 12 at 7.)
Defendants have filed three separate motions to dismiss, arguing Plaintiff’s claims should
be dismissed under Fed. R. Civ. P 12(b)(1) and (12)(b)(6). (Docs. No. 31; 33; 47.)
LEGAL STANDARDS
I. Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure Rule 12(b)(1) allows a court to dismiss a complaint for
lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Such dismissal is not a judgment on
the merits of a plaintiff’s case; rather, it is a determination that a court lacks authority to
adjudicate the matter, attacking the existence of jurisdiction rather than the complaint’s
allegations. Creek Red Nation, LLC v. Jeffco Midget Football Ass’n., Inc., 175 F. Supp. 3d 1290,
1293 (D. Colo. 2016). A court lacking jurisdiction “must dismiss the cause at any stage of the
proceedings in which it becomes apparent that jurisdiction is lacking[,]” Caballero v. Fuerzas
2 Plaintiff is seeking monetary damages from Defendants in their individual capacities, and
injunctive relief from them in their official capacities. (Doc. No. 12 at 6.)
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Armadas Revolucionarias de Colombia, 945 F.3d 1270, 1273 (10th Cir. 2019) (quotation
omitted), and the dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213,
1218 (10th Cir. 2006).
Challenges to subject matter jurisdiction may take two forms—a facial attack or a factual
attack—each with distinct analytical frameworks. U.S. v. Rodriguez-Aguirre, 264 F.3d 1195,
1203 (10th Cir. 2001). A facial challenge focuses on the sufficiency of the allegations in the
complaint. Id. In resolving a facial challenge, “the district court must accept the allegations in the
complaint as true.” Id. Conversely, a factual challenge allows a party to “go beyond allegations
contained in the complaint and challenge the facts upon which subject matter depends.” Id.
(quotation omitted). In addressing a factual challenge to subject matter jurisdiction, “the court
does not presume the truthfulness of the complaint's factual allegations, but has wide discretion
to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed
jurisdictional facts under Rule 12(b)(1).” Id. (citation and quotations omitted); see also Stuart v.
Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001) (“a court’s reference to
evidence outside the pleadings does not convert the motion into a Rule 56 motion”). The burden
of establishing subject matter jurisdiction lies with the party asserting it. Merida Delgado v.
Gonzales, 428 F.3d 916, 919 (10th Cir. 2005).
II. Federal Rule of Civil Procedure 12(b)(6)
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). When ruling
on such a motion, a court accepts all well-pleaded facts as true and views the allegations in the
light most favorable to the plaintiff. Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010).
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However, the plaintiff bears the burden of presenting a complaint with enough factual details to
suggest entitlement to relief. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Indeed, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Bixler v.
Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009)).
Ultimately, courts assess “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).
III. Pro Se Litigants
In applying the above principles, this Court is mindful Plaintiff proceeds pro se and thus
affords his papers and filings a liberal construction. Smith, 921 F.3d at 1268. But the Court
cannot and does not act as his advocate, United States v. Griffith, 928 F.3d 855, 864 n.1 (10th
Cir. 2019), and applies the same procedural rules and substantive law to Plaintiff as to a
represented party. See Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018); Dodson v. Bd.
of Cnty. Comm’rs, 878 F. Supp. 2d 1227, 1236 (D. Colo. 2012).
ANALYSIS
The Court will address Plaintiff’s claims under the First Amendment and RLUIPA in two
parts. First, Plaintiff’s official capacity claims for injunctive relief, then Plaintiff’s individual
capacity claims for punitive damages.3
3 The Prison Litigation Reform Act (“PLRA”)—which applies to pretrial detainees—bars
compensatory damages where a prisoner has not alleged a physical injury. See 42 U.S.C. §
1997e(e). Because Plaintiff has not alleged a physical injury resulting from the alleged violation
of his free exercise rights, the court should dismiss his claim for compensatory damages. See,
e.g., Searles v. Van Bebber, 251 F.3d 869, 881 (10th Cir. 2001) (finding dismissal of
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I. Official Capacity Claims
Plaintiff’s official capacity claims against Judge Bain and Governor Polis implicate the
Eleventh Amendment. Additionally, the official capacity claims against Sheriff Roybal are moot.
A. The official capacity claims against Defendants Judge Bain and Governor Polis
are barred by the Eleventh Amendment.
The Eleventh Amendment to the United States Constitution 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. This immunity extends to
suits by citizens against their own state or its agencies in federal court. Johns v. Stewart, 57 F.3d
1544, 1552 (10th Cir. 1995). “Only a state or ‘arms’ of a state may assert the Eleventh
Amendment as a defense to suit in federal court.” Sutton v. Utah State Sch. for Deaf & Blind,
173 F.3d 1226, 1232 (10th Cir. 1999). For claims brought pursuant to § 1983, a claim against a
state official sued in his official capacity “is, in all respects other than name, to be treated as a
suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 165 (1985). Thus, the Eleventh
Amendment bars suits against state officials sued in their official capacities pursuant to § 1983.
See Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1227 (10th Cir. 2010)
(saying “§ 1983 does not abrogate a state’s sovereign immunity”). “This bar does not apply,
however, if the state waives its sovereign immunity, if Congress validly abrogates the state’s
compensatory damages claim appropriate where plaintiff did not allege physical injury in First
Amendment claim); Hardeman v. Stewart, 195 F. App’x 706, 707 (10th Cir. 2006) (same).
However, because “punitive damages may be recovered for constitutional violations without a
showing of compensable injury,” Plaintiff’s punitive damages claim is not barred by the PLRA.
Searles, 251 F.3d at 881.
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immunity, or if the suit falls within the legal fiction of Ex parte Young.” Strepka v. Miller, 28 F.
App’x 823, 828 (10th Cir. 2001) (citing Harris v. Owens, 264 F.3d 1282, 1289–90 (10th Cir.
2001)).
1. Defendant Judge Bain
It is well established that official capacity claims against Colorado state court judges are
“claims against the State of Colorado.” Strepka, 28 F. App’x at 828. Here, Plaintiff’s official
capacity claim against Judge Bain is barred by the Eleventh Amendment, absent some showing
of a waiver, abrogation, or application of Ex Parte Young. Plaintiff has not identified any waiver
or abrogation of immunity—indeed, because one does not exist. See id.; Pittman v. Cardenas,
2023 WL 4623027, at *2 (D. Colo. May 8, 2023), report and recommendation adopted, 2023
WL 4623028 (D. Colo. June 7, 2023) (“The State of Colorado has not waived its Eleventh
Amendment immunity and congressional enactment of § 1983 did not abrogate Eleventh
Amendment immunity.”) (internal citations omitted) (citing Griess v. Colorado, 841 F.2d 1042,
1044-45 (10th Cir. 1988)).
Further, Plaintiff has not offered any basis for applying the doctrine of Ex Parte Young,
which typically does not save injunctive relief claims against state court judges. See Whole
Woman’s Health v. Jackson, 142 S. Ct. 522, 532 (2021) (holding “Ex parte Young . . . does not
normally permit federal courts to issue injunctions against state-court judges or clerks.”).
2. Defendant Governor Polis
Eleventh Amendment immunity for “arms” of the state includes suits against the
Governor. See Eaves v. Polis, No. 21-cv-01269-KLM, 2023 WL 3191452, at *5 (D. Colo. Mar.
30, 2023) (“The Governor is, undisputedly, an arm of the state.”). And while the Ex Parte Young
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exception permits “suits against state officials seeking to enjoin alleged ongoing violations of
federal law,” Governor Polis asserts this exception does not apply because he does not have a
duty to enforce C.R.S. § 16-4-102(2)(a)(I).4 (Doc. No. 47 at 6.)
When a state official is named as “a party defendant in a suit to enjoin the enforcement of
an act alleged to be unconstitutional, . . . such officer must have some connection with the
enforcement of the act, or else it is merely making him a party as a representative of the state,
and thereby attempting to make the state a party.” Peterson v. Martinez, 707 F.3d 1197, 1205
(10th Cir. 2013) (quoting Ex parte Young, 209 U.S. 123, 157 (1908)). Thus, to overcome
Eleventh Amendment immunity, a plaintiff must demonstrate the state official has “a particular
duty to enforce” the statute in question and “a demonstrated willingness to exercise that duty.”
Id; see also Finstuen v. Crutcher, 496 F.3d 1139, 1151 (10th Cir. 2007).
Here, Governor Polis argues that Plaintiff has failed to show a connection between the
Governor and the enforcement of C.R.S. § 16-4-102(2)(a)(I). (Doc. No. 47 at 6.) He argues he is
entitled to immunity because the statute imposes the duty to enforce on sheriffs, judges,
magistrate judges, and bond hearing officers. (Id.) In making this argument, Governor Polis
relies on Peterson, where the Tenth Circuit held the executive director of the Colorado
Department of Public Safety was entitled to Eleventh Amendment immunity because only
sheriffs were responsible for enforcing the challenged statute. Peterson, 707 F.3d at 1201.
4 The statute provides, “[t]he arresting jurisdiction shall bring an in-custody arrestee before a
court for bond setting as soon as practicable, but no later than forty-eight hours after an arrestee
arrives at a jail or holding facility. A judge, magistrate [judge], or bond hearing officer shall hold
a hearing with an in-custody arrestee at which the court shall enter an individualized bond order
as soon as practicable, but no later than forty-eight hours after an arrestee arrives at a jail or
holding facility.” C.R.S. § 16-4-102(2)(a)(I).
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First, the Court pauses to acknowledge that Peterson is not a perfect analogy. It does not
address the unique role of the Governor. Colorado has long recognized the practice of naming
the Governor, in his official role as the state’s chief executive, in cases where a party seeks to
enjoin enforcement of a statute, regulation, ordinance, or policy. See, e.g., Eaves, 2023 WL
3191452, at *5; Harris v. Polis, No. 20-cv-02999-CMA-STV, 2021 WL 3024664, at *3 (D.
Colo. June 23, 2021), report and recommendation adopted, No. 20-cv-02999-CMA-GPG, 2021
WL 3021466 (D. Colo. July 16, 2021); Cooke v. Hickenlooper, No. 13-cv-01300-MSK-MJW,
2013 WL 6384218, at *8 (D. Colo. Nov. 27, 2013), aff’d in part sub nom. Colorado Outfitters
Ass’n v. Hickenlooper, 823 F.3d 537 (10th Cir. 2016). “Courts in this district have determined
that because the Governor ‘has final authority to order the executive directors of all state
agencies to commence or cease any action on behalf of the state,’ he is a proper party to this type
of action.” Harris, 2021 WL 3024664, at *3.
But here, Plaintiff does not seek to enjoin the conduct of an administrative agency or a
member of the executive branch—rather, it appears he seeks to enjoin the judiciary from holding
court proceedings on Saturdays, or alternatively the Sheriff from forcing him to attend. (See Doc.
No. 12 at 7.) Governor Polis does not have “final authority” on matters of the judiciary. Harris,
2021 WL 3024664, at *3. So, barring a showing that Governor Polis has a “particular duty” to
enforce C.R.S. § 16-4-102(2)(a)(I) and “a demonstrated willingness to exercise that duty,”
Governor Polis is not a proper defendant here. Peterson, 707 F.3d at 1205. Nor does he have the
requisite authority over the Sheriff.
In sum, Plaintiff’s official capacity claims against Judge Bain and Governor Polis are
barred by the Eleventh Amendment, and Plaintiff has not made a showing to overcome that bar.
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See Merida, 428 F.3d at 919 (noting the party invoking federal jurisdiction has the burden of
proof).
B. The official capacity claims against Defendant Sheriff Roybal are moot.
A court has no jurisdiction to consider moot cases—that is, cases in which “the issues
presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”
United States Parole Comm’n. v. Geraghty, 445 U.S. 388, 396 (1980) (citation omitted). A claim
may become moot at any point in the controversy and thus deprive the court of authority to
decide questions which had previously been at issue. Lewis v. Cont’l. Bank Corp., 494 U.S. 472,
477–78 (1990). A prisoner’s claim for injunctive relief is moot if he is no longer subject to the
conditions complained of in the pleading, and cannot demonstrate a good chance of being
likewise injured in the future. Jordan v. Sosa, 654 F.3d 1012, 1028 (10th Cir. 2011); Facio v.
Jones, 929 F.2d 541, 544 (10th Cir. 1991). “Past exposure to illegal conduct does not in itself
show a present case or controversy regarding injunctive relief . . . if unaccompanied by any
continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974).
Here, Plaintiff is no longer in custody of EPCJ. (See Doc. No. 40 (Plaintiff’s notice of
change of address).) He is therefore no longer subject to the Fourth Judicial District’s rules
regarding Saturday advisements. See Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997)
(finding plaintiff’s claim for injunctive relief moot once he was released from prison system).
Moreover, Plaintiff arguably concedes in his Complaint that there is no ongoing violation of his
religious exercise rights, alleging it “[d]oes not matter whether [the violations] are ‘ongoing’ for
me currently, but they could be if I get another charge.” (Doc. No. 12 at 5.) And in any event,
Plaintiff’s speculation about a possible future charge is insufficient to establish a live
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controversy. Indeed, the Tenth Circuit has cautioned against assuming that a party will repeat the
type of misconduct that would once again place him at risk of the claimed injury. See McAlpine
v. Thompson, 187 F.3d 1213, 1217 (10th Cir. 1999) (quoting Honig v. Doe, 484 U.S. 305, 320
(1988)). The Court therefore lacks jurisdiction to consider Plaintiff’s First Amendment and
RLUIPA claims against Sheriff Roybal.5 Geraghty, 445 U.S. at 396; see also Mares v. LePage,
No. 16-cv-03082-RBJ-NYW, 2017 WL 3836042, at *4 (D. Colo. Aug. 31, 2017), report and
recommendation adopted, No. 16-cv-03082-RBJ-NYW, 2018 WL 1312814 (D. Colo. Mar. 13,
2018) (finding plaintiff’s injunctive claim moot where he was no longer at the Pueblo County
Detention Center, and there was no evidence that he would be detained there in the future).
II. Individual Capacity Claims6
5 Additionally, Plaintiff fails to state a claim under the First Amendment and RLUIPA. To state a
First Amendment official capacity claim under Monell, a plaintiff must allege (1) a constitutional
violation by a municipal employee, (2) the existence of a municipal custom or policy, and (3) a
direct causal link between the custom or policy and the violation alleged. Monell v. Dep’t of Soc.
Servs. of N.Y., 436 U.S. 658, 694 (1978). Though Plaintiff alleges EPSO staff threatened him
with the loss of privileges if he refused to attend court during Sabbath, (see Doc. No. 12 at 4), he
does not allege this conduct stemmed from an EPSO custom, policy, or practice. Schneider v.
City of Grand Junction Police Dep’t, 717 F.3d 760, 769 (10th Cir. 2013). Indeed, the setting of
Saturday hearings stems from a statute and certain judicial practices. As to the RLUIPA claim,
the complaint must allege that (1) the plaintiff wishes to engage in a religious exercise; (2) this
wish is motivated by a sincerely held belief; and (3) the exercise is subject to a substantial
burden imposed by the government. See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1312 (10th Cir.
2010). Even assuming—without deciding— that Plaintiff has alleged a substantial burden on his
religious exercise, the claim still fails because he does not plausibly allege that Sheriff Roybal
has the authority to provide the requested injunctive relief (i.e., enjoin the Fourth Judicial District
from conducting proceedings between Friday night and Saturday night or otherwise disregard
court settings). See West v. Denver Cnty. Jail Warden, No. 07-cv-00226-REB-KLM, 2008 WL
732600, at *6 (D. Colo. Mar. 18, 2008) (finding plaintiff’s request for injunction “must fail
because the named Defendants lack the authority to provide Plaintiff with the relief he desires”).
6 Because RLUIPA does not create a cause of action for individual capacity claims, Plaintiff’s
individual capacity RLUIPA claims must be dismissed. Stewart v. Beach, 701 F.3d 1322, 1335
(10th Cir. 2012) (“[T]here is no cause of action under RLUIPA for individual-capacity claims.”);
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All First Amendment individual capacity claims are barred by some form of immunity.
The Court addresses absolute immunity first, then qualified immunity.
A. The individual capacity claim against Defendant Judge Bain is barred by
judicial immunity.
Federal courts “have proceeded on the assumption that common-law principles of
legislative and judicial immunity were incorporated into our judicial system and that they should
not be abrogated absent clear legislative intent to do so.” Pulliam v. Allen, 466 U.S. 522, 529
(1984). Thus, judicial immunity extends to claims of violations of constitutional rights under §
1983. Stump v. Sparkman, 435 U.S. 349, 356 (1978). A judge lacks immunity only for (1)
“nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity” or (2) judicial actions
“taken in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11–12 (1991).
“The factor determining whether an act by a judge is a ‘judicial’ one relates to the nature of the
act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of
the parties, i.e., whether they deal with the judge in his judicial capacity.” Stump, 435 U.S. at
362.
Here, the allegations against Judge Bain appear to relate to his official duties of managing
the Fourth Judicial District’s criminal court docket and conducting advisements. In other words,
the relevant acts are judicial acts “normally performed by a judge” acting in his judicial capacity.
Stump, 435 U.S. at 362. Moreover, there is nothing to suggest Judge Bain’s actions were “taken
in the complete absence of all jurisdiction.” Mireles, 502 U.S. at 11–12. Judge Bain is therefore
entitled to absolute judicial immunity as to Plaintiff’s individual capacity claim.
see also Sossamon v. Texas, 563 U.S. 277, 293 (2011) (noting monetary relief is not available
under RLUIPA).
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B. The individual capacity claims against Defendants Governor Polis and Sherriff
Roybal are barred by the doctrine of qualified immunity.
Qualified immunity shields individual state actors from liability for civil damages so long
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). When a
defendant raises the defense of qualified immunity, the “plaintiff carries a two-part burden to
show: (1) that the defendant’s actions violated a federal constitutional or statutory right, and if
so, (2) that the right was clearly established at the time of the defendant’s unlawful conduct.”
T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017) (internal quotations omitted). The district
court may address the steps in either order. Carabajal v. City of Cheyenne, Wy., 847 F3d 1203,
1208 (10th Cir. 2017) (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). Here, the Court
begins its analysis with the “constitutional violation” prong.
“Individual liability under § 1983 must be based on personal involvement in the alleged
constitutional violation.” Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997). Supervisory
status alone does not create § 1983 liability. Duffield v. Jackson, 545 F.3d 1234, 1239 (10th Cir.
2008). Rather, there must be “an affirmative link . . . between the constitutional deprivation and
either the supervisor’s personal participation, his exercise of control or direction, or his failure to
supervise.” Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (quotation and brackets
omitted).
Plaintiff has not sufficiently pled that Governor Polis or Sheriff Roybal personally
participated in the alleged First Amendment violation.
As to Governor Polis, Plaintiff alleges he is “responsible for this illegal procedure, rule,
statute to be implemented” and “is well aware and signed an executive order giving the judiciary
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carte blanche to perform these heinous procedures,” (Doc. No. 12 at 2; 6), but these allegations
are entirely conclusory. See generally Iqbal, 556 U.S. at 678 (noting “naked assertion[s]” devoid
of “further factual enhancement” are insufficient to state a claim). In any event, mere “awareness
does not equate to participation in or responsibility for specific harm to a specific person.”
Pettigrew v. Long, No. 23-cv-1294-MDB, 2024 WL 5336648, at *4 (D. Colo. Aug. 15, 2024)
(citing Davis v. Ark. Valley Corr. Facility, 99 F. App’x 838, 843 (10th Cir. 2004)).
As to Sherrif Roybal, Plaintiff’s claims appear to be aimed at the Sheriff’s employees.
(See Doc. No. 12 at 5 (alleging “4th judicial and its adjunct cronies tried to make me go to court
on Saturday under threats and duress by EPSO (Sherrif’s) employees DODGE, GRIER,
GARCIA, LEWIS just to name a few and if I refused to go would not be allowed of my cell for
‘free time.’”).) Even assuming Sheriff Roybal is one of the alleged “adjunct cronies,” Plaintiff
does not allege Sheriff Roybal personally threatened Plaintiff or forced him to attend the
Saturday advisements. And while Plaintiff contends Sheriff Roybal is “responsible for inmates
appearance in court,” (id. at 3), he does not allege that Sheriff Roybal instructed his employees to
threaten Plaintiff or otherwise failed to supervise the EPSO staff, which is necessary to prove
individual liability under a supervisory theory. See Green, 108 F.3d at 1302.
Because Plaintiff has not met his burden with respect to the constitutional violation
prong, the Court need not address the “clearly established” prong to find that Governor Polis and
Sheriff Roybal7 are entitled to qualified immunity on Plaintiff’s First Amendment individual
7 Sheriff Roybal also asserts he is entitled to quasi-judicial immunity, and the Court agrees. (Doc.
No. 33 at 12-13.) “[O]fficial[s] charged with the duty of executing a facially valid court order
enjoy[ ] absolute immunity from liability for damages in a suit challenging conduct prescribed by
that order.” Moss v. Kopp, 559 F.3d 1155, 1163 (10th Cir. 2009) (quoting Valdez v. City & Cnty.
of Denver, 878 F.2d 1285, 1286 (10th Cir. 1989)). For an official to be entitled to quasi-judicial
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capacity claims. See Pearson, 555 U.S. at 236 (noting if either inquiry fails, no further analysis is
needed and qualified immunity is appropriate).
CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that Defendants
Bain, Roybal, and Polis’s Motions to Dismiss (Docs. No. 31; 33; 47) be GRANTED and
Plaintiff’s claims be DISMISSED.8
The Clerk of Court is directed to mail a copy of this Recommendation to Plaintiff:
Conrad Czajkowski
#A00154185
Colorado Mental Health Institute at Pueblo (CMHIP)
1600 West 24th Street
Pueblo, CO 81003
immunity, “the judge issuing the disputed order must be immune from liability in his or her own
right, the officials executing the order must act within the scope of their own jurisdiction, and the
officials must only act as prescribed by the order in question.” Id. Here, the Court has found
Judge Bain is immune from liability in his own right as to the Fourth Judicial District’s practice
of holding Saturday advisements to comply with C.R.S. § 16-4-102(2)(a)(I). (See supra Part
II.A.) Additionally, as the elected Sheriff of El Paso County, Sheriff Roybal is required to house
and transport inmates who are in his custody. See C.R.S. §§ 17-26-102, 17-26-103, 30-10-514
30-10-515. Thus, in facilitating the appearances of inmates for video advisements, Sheriff
Roybal is acting within his own jurisdiction. Finally, because Sheriff Roybal facilitates the
appearance of inmates only as required by the court and legislature, the third prong is met. (See
Doc. No. 33 at 13.)
8 The Court recommends dismissing Plaintiff’s official capacity claims without prejudice. See
Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006) (dismissals for lack of
subject matter jurisdiction should be without prejudice). However, the Court recommends
dismissing Plaintiff’s individual capacity claims with prejudice because—given the nature of the
allegations and issues—the Court believes any further amendment would be futile. See Avery v.
Wade, No. 22-4093, 2022 WL 17544077 at *1 (10th Cir. Dec. 9, 2022) (noting courts have
discretion to dismiss a pro se plaintiff’s complaint with prejudice where “amendment would be
futile[.]”); see also Carrillo v. Wieland, No. 12-cv-2680-WJM-MEH, 2012 WL 12893424, at *1
(D. Colo. Oct. 15, 2012), aff’d, 527 F. App’x 754 (10th Cir. 2013) (“[B]ecause Plaintiffs’ claims
are barred by judicial immunity, the Court finds that amendment of the Complaint would be
futile.”); Clark v. Wilson, 625 F.3d 686, 692 (10th Cir. 2010) (holding dismissal based on
qualified immunity should be with prejudice).
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ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings 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); 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. One Parcel of Real Prop.
Known As 2121 East 30th Street, Tulsa, Okla., 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 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 and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s
decision to review a magistrate judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at
1059-60 (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); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.
1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had
waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,
1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal
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the magistrate judge’s ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th
Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated this 19th day of February, 2025.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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