Vincent Gabriel v. El Paso Combined Courts

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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VINCENT GABRIEL,
Plaintiff - Appellant,
v.
EL PASO COMBINED COURTS;
DAVID LEE SHAKES, individually and in
his official capacity Judge of El Paso
Combined Courts; GWEN PRATOR,
individually and as employee of David
Shakes; DANIEL MAY, individually and
in his official capacity as District Attorney;
DAVID GUEST, individually and as an
employee; JOHN PARCELL, as an
employee; BECCA KINIKIN, as an
employee; ADAM BAILEY, individually
and as an employee,
Defendants - Appellees.
No. 20-1020
(D.C. No. 1:19-CV-02248-DDD-KMT)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, HOLMES, and EID, Circuit Judges.
_________________________________
* After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
January 8, 2021
Christopher M. Wolpert
Clerk of Court
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Vincent Gabriel appeals the district court’s dismissal of his 42 U.S.C. § 1983
claim against judicial and prosecutorial officials in El Paso County, Colorado. He
argues that the district court erred in dismissing his claim that the defendants
wrongfully denied his attempts to expunge his arrest and criminal records.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
Following a shoplifting incident, Gabriel pled guilty to a single charge of
menacing. He was sentenced to complete a Veterans Trauma Court program and he
also agreed to an approved aftercare program. He further stipulated that unless he
completed both programs, he waived his right to have his arrest and criminal record
sealed.
After he completed the Veterans Trauma Court program, but not the approved
aftercare program, Gabriel filed motions in state court seeking to expunge or seal the
records. The District Attorney objected to expunction or sealing, and Judge David
Lee Shakes denied Gabriel’s requests because Gabriel failed to complete the required
aftercare program.
In his complaint, Gabriel admits that he did not complete the aftercare
program. However, he contends that his strong performance during the Veterans
Trauma Court program obviated the need to complete the aftercare program. He
claims that the prosecutorial defendants’ objection to his attempt to expunge or seal
the records and the judicial defendants’ failure to expunge or seal them violated his
constitutional rights and state law.
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The prosecutorial defendants filed a motion to dismiss. Gabriel sought a
60-day extension to respond to the motion and to amend an affidavit he had
incorporated into his complaint. A magistrate judge granted his motion in part,
giving him an additional 21 days to file a response, but she denied all other relief.
Gabriel did not file a response during the extended time period. The judicial
defendants then filed a motion to dismiss, which was granted before Gabriel
responded to it.
In its order granting both motions to dismiss, the district court reasoned that
Gabriel was not entitled to have his record expunged because he failed to complete
the aftercare program, which was a precondition to which he had agreed in his plea
agreement. The district court also determined that the judicial and prosecutorial
defendants had absolute immunity from civil liability for the performance of actions
taken in their judicial and prosecutorial roles, and the El Paso County Combined
Courts lacked the legal capacity to be sued.
Gabriel filed a motion for reconsideration, which was denied. He then filed
this timely appeal.
II
“We review de novo a district court’s conclusion on the question of absolute
immunity.” Gagan v. Norton, 35 F.3d 1473, 1475 (10th Cir. 1994). Gabriel’s other
challenges are reviewed for an abuse of discretion. See Jensen v. W. Jordan City,
968 F.3d 1187, 1201 (10th Cir. 2020) (leave to amend a complaint); Rachel v. Troutt,
820 F.3d 390, 394 (10th Cir. 2016) (extensions of time); Toevs v. Reid, 685 F.3d
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903, 916 (10th Cir. 2012) (appointment of counsel in a civil case). “A district court
abuses its discretion when it renders a judgment that is arbitrary, capricious,
whimsical, or manifestly unreasonable.” Carter v. Bigelow, 787 F.3d 1269, 1278
(10th Cir. 2015) (quotation omitted). We construe Gabriel’s pro se pleadings
liberally but do not serve as his advocate. United States v. Griffith, 928 F.3d 855,
864 n.1 (10th Cir. 2019).
A
The district court correctly determined that the individual defendants were
entitled to absolute immunity.1 “[A]bsolute immunity defeats a suit at the outset, so
long as the official’s actions were within the scope of the immunity.” Imbler v.
Pachtman, 424 U.S. 409, 419 n.13 (1976). “In determining whether particular actions
of government officials fit within . . . absolute immunity . . . we apply a functional
approach, which looks to the nature of the function performed . . . .” Benavidez v.
Howard, 931 F.3d 1225, 1230 (10th Cir. 2019) (per curiam) (quotation omitted).
1 Gabriel does not challenge the district court’s conclusion that the El Paso
County Combined Courts lack capacity to be sued. In his reply brief he characterizes
this conclusion as a “non-issue.” In addition, although it appears Gabriel intended to
sue the defendants in both their individual and official capacities, he does not
adequately develop a separate argument in his opening brief concerning the dismissal
of the defendants in their official capacities. We therefore decline to address these
issues. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e
routinely have declined to consider arguments that are not raised, or are inadequately
presented, in an appellant’s opening brief.”). For similar reasons, we also decline to
address Gabriel’s argument that the district court failed to provide him with
injunctive relief, a request which was not presented to the district court.
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Gabriel’s complaint sought damages against Judge Shakes and his clerk
because the judge failed to grant his motion to expunge his criminal record. A judge
acting in his judicial capacity is immune from suit unless he acts in the clear absence
of all jurisdiction or is sued for a non-judicial act. Mireles v. Waco, 502 U.S. 9, 11
(1991). Neither exception applies here. Judge Shakes’ actions in denying Gabriel’s
motion to expunge or seal records were those “normally performed by a judge,” and
Gabriel “dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S.
349, 362 (1978). Accordingly, Judge Shakes is immune from suit. His clerk is
likewise immune for exercising functions related to Gabriel’s attempt to obtain
expunction or sealing of his criminal record.
Gabriel’s claims against the District Attorney and other prosecutorial
employees likewise fail because the defendants are entitled to absolute immunity “for
activities intimately associated with the judicial process.”2 Gagan, 35 F.3d at 1475
(emphasis, ellipsis, and quotation omitted). The prosecutorial defendants’ actions in
opposing expunction or sealing in the state-court proceeding were intimately
associated with the judicial process. The district court therefore properly granted
them absolute immunity.
2 The complaint also included allegations of “stalking, email attacks, text
messages attacks and planted individuals” intended to harass Gabriel, including
“threats of home invasion.” These generalized allegations fail to state a plausible
claim for relief against any defendant. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“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.”
(quotation omitted)).
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B
Gabriel next argues that the district court erred in dismissing his complaint
with prejudice rather than without prejudice. A dismissal with prejudice is
appropriate when the defendants are immune from suit and further amendment of the
plaintiff’s complaint would be futile. See McKinney v. Okla., Dep’t of Human
Servs., 925 F.2d 363, 365-66 (10th Cir. 1991). Because Gabriel cannot overcome the
bar of absolute immunity, these conditions are met here, so the district court did not
abuse its discretion in dismissing the complaint with prejudice.
Similar reasoning applies to Gabriel’s assertion that the district court
dismissed his complaint before he had the opportunity to respond to the motions to
dismiss and without having first ruled on his objections to the magistrate judge’s
denial of his request for additional time. “[A]lthough we disfavor . . . dismissals
before the losing party has an opportunity to respond, this court has held that such a
dismissal . . . is not reversible error when it is patently obvious that the plaintiff
could not prevail on the facts alleged and allowing him an opportunity to amend his
complaint would be futile.” Knight v. Mooring Cap. Fund, LLC, 749 F.3d 1180,
1190 (10th Cir. 2014) (alterations and quotation omitted). Such a dismissal does not
violate due process because “[a] litigant whose complaint has been dismissed with
prejudice could file a motion to alter or amend the judgment under Rule 59(e) or for
relief from the judgment under Rule 60(b),” and “can also bring an appeal.” Curley
v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001).
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Finally, Gabriel argues that the district court erred in denying his request for
appointed counsel. However, even with counsel, Gabriel cannot overcome the
defendants’ absolute immunity from suit. Accordingly, the district court did not err
in denying his request.
III
We affirm the district court’s challenged orders and its judgment. We deny as
moot Gabriel’s motions to add exhibits and to submit additional attachments to his
brief, as the relevant documents are already part of the record on appeal. His motion
to strike the appellees’ briefs is denied.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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