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

OCR transcription for search; preserved printed pages are authoritative

Case No. 1:22-cv-01136-CNS-TPO Document i00 filed 04/04/25 USDC Colorado
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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). On August 13, 2024, the Court affirmed and
adopted Magistrate Judge O’Hara’s Recommendation. ECF No. 60. At the time, Plaintiff
had not filed an objection. Plaintiff later asserted that he had not received the
Recommendation in time to object, so the Court granted him 14 additional days to file a
written objection, which is now ripe. ECF No. 77. For the following reasons, the Court RE-

AFFIRMS the Recommendation as an order of this Court.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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I. 	SUMMARY FOR PRO SE PLAINTIFF
Magistrate Judge O’Hara 1 recommended that this Court dismiss without prejudice
your official- and individual-capacity claims against Defendant Twining based on Eleventh
Amendment 	immunity 	and 	absolute 	prosecutorial 	immunity, 	respectively. 	He 	also
recommended that your Fourth Amendment claims against Defendants Denver and
Commander Chuck be dismissed without prejudice for failure to state a claim; your
substantive due process claims against Defendants Denver and Commander Chuck be
dismissed without prejudice for failure to state a claim; and Defendants’ motion be denied
to the extent that it seeks dismissal of your procedural due process claims against
Defendants Denver and Commander Chuck.
As explained in more detail below, the Court has performed a de novo review of
the challenged determinations and has determined that they are correct. Therefore, your
claims against Defendant Twining, and your Fourth Amendment and substantive due
process claims against Defendants 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 remains
viable and will proceed.
1 This case was originally referred to Magistrate Judge James P. O’Hara, who issued the Recommendation.
The case has now been referred to Magistrate Judge Timothy P. O’Hara.
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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
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. Defendant 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 his clothing, sneakers, and 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.
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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
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. Defendants City and County of Denver and
Commander Chuck filed their motion to dismiss Plaintiff’s second amended complaint on
January 17, 2024, ECF No. 43, and Defendant Twining filed his motion to dismiss 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.
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On August 13, 2024, the Court affirmed and adopted Magistrate Judge O’Hara’s
Recommendation. ECF No. 60. At the time, Plaintiff had not filed an objection. On August
30, however, Plaintiff moved for reconsideration of that order, asserting that he did not
receive Magistrate Judge O’Hara’s Recommendation in time to object. ECF No. 63.
Therefore, 	he 	argued 	that 	he 	was 	unable 	to 	timely 	object 	or 	respond 	to 	the
Recommendation. Plaintiff asked the Court to vacate its August 13 order to allow him time
to object to the Recommendation. The Court granted his request in part. ECF No. 71. The
Court granted Plaintiff 14 additional days to file a written objection, but the Court denied
his request to vacate the order, explaining that it will revisit its order after reviewing
Plaintiff’s objection and Defendants’ responses. Plaintiff’s objection is now ripe for review.
III. 	LEGAL ANALYSIS
Under 28 U.S.C. § 636(b)(1)(B), this Court may designate a magistrate judge to
consider dispositive motions 	and submit recommendations to the 	Court. When a
magistrate judge issues a recommendation on a dispositive matter, the district judge must
“determine de novo any part of the magistrate judge’s [recommended] disposition that
has been properly objected to.” Fed. R. Civ. 72(b)(3). An objection to a recommendation
is properly made if it is both timely and specific. United States v. 2121 East 30th St., 73
F.3d 1057, 1059–60 (10th Cir. 1996). An objection is sufficiently specific if it “enables the
district judge to focus attention on those issues—factual and legal—that are at the heart
of the parties’ dispute.” Id. at 1059. In conducting its review, “[t]he district judge may
accept, reject, or modify the recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
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IV. 	ANALYSIS
Plaintiff raises three objections to the Recommendation. ECF No. 77. The first two
objections pertain to the dismissal of his official- and individual-capacity claims against
Defendant Twining. Id. at 3–10. His third objection concerns the recommendation to
dismiss his Fourth Amendment claims against Defendants City and County of Denver and
Commander Chuck. Id. at 11–13. The Court will address each of Plaintiff’s objections in
turn.
A. 	Objection One: Eleventh Amendment Immunity
Plaintiff sued Defendant Twining, the “Chief Deputy District Attorney,” in his official
and individual capacity. ECF No. 41 at 2–4. For the former, Magistrate Judge O’Hara
correctly explained that 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. ECF No. 59 at 7 (collecting caselaw). He went on to find that
neither exception to the Eleventh Amendment immunity applies, and thus the Eleventh
Amendment bars Plaintiff’s claims against Defendant Twining. Id. at 8–11.
Plaintiff argues in his objection that the Ex parte Young doctrine applies to court
orders to pay funds, meaning that those orders qualify as an exception to Eleventh
Amendment immunity—so he contends that the official capacity claims against Defendant
Twining can move forward. ECF No. 77 at 3–6. The Court does not agree.
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Magistrate Judge O’Hara considered and rejected the Ex parte Young doctrine in
his Recommendation, finding that Plaintiff seeks the equivalent of money damages. 2 ECF
No. 59 at 10–11. Upon de novo review, the Court agrees with Magistrate Judge O’Hara.
Plaintiff seeks the following injunctive relief: “[A]n injunction ordering . . . the Denver D.A.’s
Office . . . to release and return [Plaintiff’s] funds.” ECF No. 41 at 19. Or stated a bit
differently, Plaintiff seeks an order requiring the district attorney’s office to return the
money at issue. Nothing in Plaintiff’s objection compels a different outcome. See Hakeem
v. Kansas Dep’t of Hum. Servs., Child Support Enf’t Div., No. 22-3144, 2022 WL
16642268, at *5 (10th Cir. Nov. 3, 2022) (rejecting the plaintiff’s contention that the
“prospective-relief” exception of Ex parte Young applies, explaining that, “although
Hakeem characterizes the relief he seeks as injunctive, equitable, and prospective, it is
not” because he “seeks the return of funds that were previously taken from him”).
The Court overrules Plaintiff’s first objection.
B. 	Objection Two: Absolute Immunity
Like the official-capacity claims, Magistrate Judge O’Hara recommended that
Plaintiff’s claims against Defendant Twining in his individual capacity be dismissed
without prejudice, this time under the absolute prosecutorial immunity doctrine. ECF No.
59 at 15. Plaintiff argues in his objection that absolute immunity does not apply because
2 “[U]nder [Ex parte Young], a plaintiff may bring suit against individual state officers acting in their official
capacities if the complaint alleges an ongoing violation of federal law and the plaintiff seeks prospective
relief.” Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012) (citing Verizon Md. Inc. v.
Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)). To determine whether the Ex parte Young exception
applies, the court “need only conduct a straightforward inquiry into whether the complaint alleges an
ongoing violation of federal law and seeks relief properly characterized as prospective.” Id. at 1167 (quoting
Verizon Md. Inc., 535 U.S. at 645).
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Defendant Twining’s action of filing a response into a state court case was not part of the
judicial process but instead made Defendant Twining an administrator of the funds at
issue. ECF No. 77 at 6–10. He argues that Magistrate Judge O’Hara overlooked the key
fact that Defendant Twining admitted that the state had no cognizable bases to retain
Plaintiff’s funds. Id. The Court is not persuaded by Plaintiff’s argument.
“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)). “[P]rosecutors 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 other words, “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. 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’s allegations concerning Defendant Twining all relate to his role as
a prosecutor. The Court agrees with Magistrate Judge O’Hara that Defendant 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 a prosecutor. ECF
No. 59 at 14–15 (quoting Imbler, 424 U.S. at 430). Although Plaintiff may disagree with
the content of Defendant Twining’s state court filings, that does not mean that Defendant
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Twining was not acting as an advocate or was not acting as “an officer of the court.”
Imbler, 424 U.S. at 431 n.33.
Having performed a de novo review of Magistrate Judge O’Hara’s findings, the
Court finds that Plaintiff’s claims against Defendant Twining in his individual capacity are
barred by absolute prosecutorial immunity. The Court thus overrules Plaintiff’s second
objection.
C. 	Objection Three: Fourth Amendment Claim
Plaintiff asserts a claim of “Unreasonable Seizure/Deprivation of Property in
Violation of the Fourth Amendment.” ECF No. 41 at 8. He alleges that Defendants’
continued retention of his funds, as opposed to the seizure itself, violated his Fourth
Amendment rights. Id. at 8–14.
Magistrate Judge O’Hara recommended dismissing the Fourth Amendment claim
because it is governed by the due process clause, not the Fourth Amendment. ECF No.
59 at 15–18. Plaintiff objects, arguing that the Fourth Amendment controls his claim. ECF
No. 77 at 11–13. The Court does not agree with Plaintiff.
The Tenth Circuit has explained that claims “related to the continued retention of
[a 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) (unpublished). Rather, 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
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Cnty. Comm’rs, 4 F.3d 848, 853, 856 (10th Cir.1993), and Kripp v. Luton, 466 F.3d 1171,
1173 (10th Cir.2006) (distinguishing Fourth Amendment claim regarding illegal search
and seizure from claim alleging deprivation of property in forfeiture process, which was
“essentially a Fifth Amendment due process claim”)); see also id. (collecting cases from
the Second, Seventh, and Eleventh Circuits). 3 And here, Plaintiff does not argue that the
initial seizure of the money was unlawful; he argues that Defendants’ retention of the
money is unlawful. ECF No. 41 at 8–14. Thus, Plaintiff’s claims arise under the due
process clause.
Upon de novo review of Magistrate Judge O’Hara’s findings, the Court finds that
Plaintiff has failed to state a cognizable claim under the Fourth Amendment. The Court
thus overrules Plaintiff’s final objection. 4
3 In Shaul v. Cherry Valley–Springfield Central School District, the Second Circuit held that a claim related
to the government’s retention of property after the plaintiff’s seizure raised a due process issue rather than
an unreasonable seizure claim. 363 F.3d 177, 187 (2d Cir.2004) (“Where, as in this case, 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.”). See also Porter v. DiBlasio, 93 F.3d 301, 304–06 (7th
Cir.1996) (analyzing procedural due process claims related to termination of rights in seized horses);
Lindsey v. Storey, 936 F.2d 554, 561 & n.9 (11th Cir. 1991) (analyzing seizure claim under Fourth
Amendment separately from procedural due process claim regarding continued retention of personal
property).
4 The Court has reviewed Plaintiff’s supplemental authority, ECF No. 89, where he argues that Anisor v.
District of Columbia supports his Fourth Amendment claim. 111 F.4th 1249 (D.C. Cir. 2024). The Court
does not agree that Anisor requires modification or rejection of the Recommendation. To be sure, the D.C.
Circuit held that, “[w]hen the government seizes property incident to a lawful arrest, the Fourth Amendment
requires that any continued possession of the property must be reasonable.” Id. But as Judge Henderson
stated in her concurrence, “[f]ive circuits — the First, Second, Sixth, Seventh and Eleventh — have held in
precedential opinions that the Fourth Amendment does not support a claim for the government’s retention
of legally seized property.” Id. at 1261–62 (Henderson, J. concurring). The Court respectfully declines to
follow the Anisor holding because the Tenth Circuit in Snider, albeit in an unpublished opinion, followed the
majority position finding that the Fourth Amendment does not support Plaintiff’s claim. Moreover, Winters
and Kripp, both Tenth Circuit published opinions, support Snider’s holding.
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V. CONCLUSION
The Court previously affirmed and adopted Magistrate Judge O’Hara’s
Recommendation, ECF No. 59, as an order of this Court. ECF No. 60. The Court now
overrules Plaintiff's objection (ECF No. 77) and affirms its previous order.

DATED this 4th day of April 2025.

Charlotte MS wegéney
United State strict Jud6e

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