Burnam et al v. Weld County Sheriffs, The et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-00151-NYW-NRN
ERIC BURNAM,
ERIN CIENFUEGOS, and
MICHELLE ERICKSON,
Plaintiffs,
v.
THE WELD COUNTY SHERIFFS,
THE DEPARTMENT OF HUMAN SERVICES OF WELD COUNTY,
THE COUNTY ATTORNEYS OFFICE OF WELD COUNTY,
ASHLEY HUGHES,
ANGELA TIMOTHY-FELICE,
DONOVAN PECORELLA,
TRAVIS DENNING,
PETE JONES,
JARED PATTERSON,
DANIEL CHAPMAN,
DANIEL TRUJILLO, and
LARRY NUEGEBAUER,
Defendants.
REPORT AND RECOMMENDATION ON
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT (Dkt. #12)
and
MOTION TO QUASH ALLEGED SERVICE OF PROCESS OF, OR IN
ALTERNATIVE TO DISMISS, PLAINTIFFS’ COMPLAINT FROM DEFENDANT
PETE JONES (Dkt. #37)
N. Reid Neureiter
United States Magistrate Judge
This case is before the Court pursuant to Orders (Dkt. ##18 & 39) issued by
Judge Nina Y. Wang referring two motions:
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• Defendants Weld County Sheriffs, Department of Human Services of Weld
County and County Attorneys Office of Weld County (collectively “County
Defendants”), along with Jared Patterson, Daniel Chapman, Larry Nuegebauer,
Travis Denning, Angela Timothy Fleece, and Ashley Hughes’ (collectively
“Individual Defendants”) Motion to Dismiss Plaintiffs’ Complaint (Dkt. #12).
Plaintiffs Eric Burnam, Erin Cienfuegos, and Michelle Erickson (collectively
“Plaintiffs”), who proceed pro se,1 filed a response (Dkt. #23) and Defendants
filed a reply (Dkt. #33).
• Defendant Pete Jones’ Motion to Quash Alleged Service of Process of, or in
Alternative to Dismiss, Plaintiffs’ Complaint (Dkt. #37), to which Plaintiffs filed a
response (Dkt. #42) and Mr. Jones a reply (Dkt. #43).
The Court has heard argument from the parties, taken judicial notice of the docket,
and considered the applicable Federal Rules of Civil Procedure and case law. Now,
being fully informed and for the reasons discussed below, the Court RECOMMENDS
that subject motions (Dkt. ##12 & 37) be GRANTED.
1 Because Plaintiffs proceed pro se, the Court “review[s their] pleadings and
other papers liberally and hold[s] them to a less stringent standard than those drafted by
attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations
omitted). However, a pro se litigant’s “conclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff
can prove facts that have not been alleged, or that a defendant has violated laws in
ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal.
State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New
Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (court may not “supply additional
factual allegations to round out a plaintiff’s complaint”); Drake v. City of Fort Collins, 927
F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for
the plaintiff in the absence of any discussion of those issues”). A plaintiff’s pro se status
does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d
952, 957 (10th Cir. 2002).
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BACKGROUND2
The following allegations are taken from Plaintiffs’ Complaint for a Civil Case
(“Complaint”) (Dkt. #1), and those that are well-pled are presumed to be true for the
purposes of these motions.
I. The Parties
Plaintiffs Eric Burnam, Erin Cienfuegos, and Michelle Erickson lived together at a
residence in Hudson, Colorado, along with Mr. Burnam and Ms. Cienfuegos’s six
children. (Dkt. #1 at 10.)
Defendants Donovan Pecorella, Pete Jones, Jared Patterson, Daniel Chapman,
Daniel Trujillo, and Larry Nuegebauer were members of the Weld County Sheriff’s
Office (“WCSO”) Strike Force Task Force. (Id.) Defendants Pecorella, Jones, and
Trujillo are no longer employed by the WCSO, and Pecorella and Truijillo have not been
served in this matter. Defendant Jones argues that the purported service on him was
improper.
Defendant Ashley Hughes is a Weld County Attorney who handles dependency
and neglect cases. (Id.)
Defendant Angela Timothy-Felice is a Child Protection Permanency Caseworker
for the Weld County Department of Human Services (“DHS”), and Defendant Travis
Denning is a supervisor in that department. (Id.)
2 All citations to docketed materials are to the page number in the CM/ECF
header, which sometimes differs from a document’s internal pagination.
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II. The December 9, 2020 Incident and Aftermath
On the morning on December 9, 2020, Defendant Timothy-Felice, accompanied
by Town of Hudson police officers, showed up at Plaintiffs’ residence and explained to
Mr. Burnam that they needed to see his children because an anonymous tip claimed
that there were “guns, methamphetamine[,] and a sex ring going on inside the home.”
(Id. at 11.) Mr. Burnam noticed Defendant Pecorella and another vehicle pull up two
houses down, and Defendant Pecorella began taking pictures of Mr. Burnam’s vehicles
and his back yard. (Id.) Defendant Timothy-Felice denied knowing who Defendant
Pecorella was or what he was doing. (Id.) Mr. Burnam confronted Mr. Pecorella, who
returned to the vehicles and handed his camera to an unknown occupant in the second
car. (Id.)
Mr. Burnam then began to drive to Lakewood, Colorado, to bring his children
back and present them to Defendant Timothy-Felice. (Id. at 12.) He called Ms.
Cienfuego, who was just arriving at the residence, to tell her what was going on, and
turned around to return home when Ms. Cienfuego informed him that there were now
several cars parked in front of the house. (Id.) When Mr. Burnam got back to the
residence, he was surrounded by Defendants Pecorella, Jones, and other deputies. (Id.)
Defendant Pecorella told Mr. Burnam he had a warrant for Burnam’s arrest and then
attempted to use a taser on him when Mr. Burnam protested that he had no warrants.
(Id.) The taser malfunctioned and Mr. Burnam allowed himself to be arrested. (Id.)
Defendant Jones informed Mr. Burnam that the property had been under
surveillance for almost 90 days but could not tell him what crime had been committed.
(Id.)
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Because Ms. Cienfuegos was also arrested on a misdemeanor warrant, the
children were taken into custody by Child Protective Services. (Id.) When he found this
out, Mr. Burnam suffered a severe panic attack and a minor heart attack and was taken
to a hospital. (Id.)
On December 9, 2020, while Mr. Burnam was detained in the Weld County Jail,
Defendants Chapman, Patterson, Trujillo, Pecorella, and Jones executed a search of
the residence and confiscated around $2 million worth of property. (Id.) Mr. Burnam
appeared in court on December 11, 2020, and was told that his bonds had been
revoked at the request of the WCSO. (Id.)
On December 15, 2020, another search was conducted when no one was at the
residence and, in addition to causing damage to the property, officers seized Mr.
Burnam’s 1989 Corvette, $2.3 million in gold and silver, and $5.3 million. (Id.)
Mr. Burnam was released on bond on December 24, 2020. (Id. at 14.) On
December 29, 2020, on his way back from receiving a GPS ankle monitor, Mr. Burnam
was pulled over by Defendants Pecorella, Chapman, Trujillo, and Patterson. (Id.) Mr.
Burnam overheard Defendant Nuegebauer tell Defendant Pecorella to find something in
Mr. Burnam’s vehicle so they could take him back to jail, and Mr. Burnam was again
detained because Defendants had located “a tool that was inventoried on December 9,
2020 in the same vehicle.” (Id.)
On December 30, 2020, Mr. Burnam was charged with over 30 counts across
nine different cases and was held without bond on one of the felony charges. (Id.)
Plaintiffs’ residence was again searched on January 15 and 29, 2021 for a “unidentified
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child corpse.” The remains from a miscarriage suffered by Ms. Cienfuegos and Mr.
Burnam were exhumed. (Id.)
One of Mr. Burnam’s children was at some point separated from his siblings and
placed in the custody of biological mother, who had relinquished her parental rights in
2018. (Id. at 15.) Plaintiffs appear to believe the bogus anonymous tip was made by this
woman in attempt to gain custody of the child and gave, in turn, the WCSO an excuse
to search the property. (Id.) Plaintiffs allege that Defendant Hughes was aware that this
tip was false.
Plaintiffs allege that all charges against Mr. Burnam were eventually dismissed in
September 2022. (Id. at 16.) However, as discussed below, while charges relating to the
December 9, 2020 search were dismissed, they were dismissed as part of a global
settlement of numerous criminal cases filed against Mr. Burnam.
III. The Claims for Relief
Plaintiffs appear to assert six claims for relief under 42 U.S.C. § 1983 (“Section
1983”)3 against various County and Individual Defendants for violations of Plaintiffs’
First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment rights. (See id. at 8.) They
seek millions of dollars in compensatory and punitive damages. (Id. at 17.)
THE SUBJECT MOTIONS
The Court will address Defendants’ motions in turn.
3 Section 1983 provides that “[e]very person who, under color of any
statute . . . subjects, or causes to be subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.” Section 1983 creates a “species of tort liability”
that provides relief to persons deprived of rights secured to them by the Constitution.
Carey v. Piphus, 435 U.S. 247, 253 (1978) (quotations omitted).
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I. The County and Individual Defendants’ Motion to Dismiss (Dkt. #12)
The County and Individual Defendants argue that dismissal of Plaintiffs’
Complaint is warranted under Rules 8(a)(2) and 12(b)(6) of the Federal Rules of Civil
Procedure. Additionally, Defendant Hughes argues that she is entitled to absolute
immunity, and the remaining Individual Defendants argue that they are entitled to
qualified immunity. The County Defendants argue that Plaintiffs have not adequately
alleged municipal liability.
a. Legal Standards
1. Rule 8
Rule 8(a)(2) requires every pleading to contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” “The primary purpose of
these[Rule 8] provisions is rooted in fair notice: Under Rule 8, a complaint ‘must be
presented with intelligibility sufficient for a court or opposing party to understand
whether a valid claim is alleged and if so what it is.’” Vicom, Inc. v. Harbridge Merchant
Servs., Inc., 20 F.3d 771, 775–76 (7th Cir. 1994). Rule 8(a) serves “to give opposing
parties fair notice of the basis of the claim against them so that they may respond to the
complaint, and to apprise the court of sufficient allegations to allow it to conclude, if the
allegations are proved, that the claimant has legal right to relief.” Monument Builders of
Greater Kan. City, Inc. v. Am. Cemetery Ass’n of Kan., 891 F.2d 1473, 1480 (10th Cir.
1989). A complaint violates Rule 8 when it is “virtually impossible to understand” or
“completely lacking in clarity and intelligibility.” See Mitchell v. City of Colo. Springs,
Colo., 194 F. App’x 497, 498 (10th Cir. 2006).
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2. Rule 12(b)(6)
Rule 12(b)(6) provides that a defendant may move to dismiss a claim for “failure
to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “The court’s
function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties
might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc.,
336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall,
935 F.2d at 1109. “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) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the
plaintiff pleaded facts which allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two
prongs of analysis. First, the court identifies “the allegations in the complaint that are not
entitled to the assumption of truth,” that is, those allegations which are legal
conclusions, bare assertions, or merely conclusory. Id. at 679–81. Second, the court
considers the factual allegations “to determine if they plausibly suggest an entitlement to
relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives
the motion to dismiss. Id. at 679.
However, the Court need not accept conclusory allegations without supporting
factual averments. S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir.
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1998). “[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556
U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ Nor does the complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id.
(citation omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Id. (citation omitted).
In evaluating a Rule 12(b)(6) motion to dismiss, the Court may consider
documents incorporated by reference, documents referred to in the complaint that are
central to the claims, and matters of which a court may take judicial notice. Gee v.
Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Publicly filed court records are subject
to judicial notice. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d
1169, 1172 (10th Cir. 1979); United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th
Cir. 2007); Trusdale v. Bell, 85 F. App’x 691, 693 (10th Cir. 2003).4
4 In this case, Plaintiffs attached to their response a detailed “timeline” that
contains numerous factual allegations that are not mentioned in the Complaint, as well
as hundreds of pages of additional documentation relating to Mr. Burnam’s criminal
cases and the dependency and neglect proceedings. (See Dkt. #23-1.) But a plaintiff
cannot amend his or her complaint by adding factual allegations in response to a
defendant’s motion to dismiss. See Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995)
(holding that when evaluating a motion to dismiss, a court is limited to assessing the
legal sufficiency of the allegations contained within the four corners of the complaint)
(citation omitted); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th
Cir.1984) (holding that “it is axiomatic that the complaint may not be amended by the
briefs in opposition to a motion to dismiss”) (citations omitted); Abdulina v. Eberl’s
Temp. Servs., Inc., 79 F. Supp. 3d 1201, 1207 (D. Colo. 2015). Therefore, the Court will
not consider the supplemental filing.
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b. Analysis
1. Statute of Limitations
Defendants argue that most of Plaintiffs’ constitutional claims are barred by the
statute of limitations. The Court agrees.
“A statute of limitations defense may be appropriately resolved on a Rule 12(b)
motion when the dates given in the complaint make clear that the right sued upon has
been extinguished.” Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 671 (10th Cir.
2016) (internal quotation marks omitted). If, from the complaint, “the dates on which the
pertinent acts occurred are not in dispute, [then] the date a statute of limitations accrues
is . . . a question of law” suitable for resolution at the motion to dismiss stage. Herrera v.
City of Espanola, 32 F.4th 980, 991 (10th Cir. 2022) (quoting Edwards v. Int’l Union,
United Plant Guard Workers of Am., 46 F.3d 1047, 1050 (10th Cir. 1995)).
Plaintiffs’ claims are brought pursuant to Section 1983, and “the relevant statute
of limitations for a § 1983 claim ‘is that which the State [in which the cause of action
arose] provides for personal-injury torts.’” Eden v. Webb, No. 22-3064, 2022 WL
17576354, at *1 (10th Cir. Dec. 12, 2022) (quoting Wallace v. Kato, 549 U.S. 384, 387
(2007)). Although Plaintiffs assert that a three-year statute of limitations governs their
claims (Dkt. #23 at 5), the applicable state statute is Colorado’s general two-year statute
of limitations, which provides a two-year period for a plaintiff to bring suit. See Colo.
Rev. Stat. § 13-80-102; Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (“We
have made clear that the statute of limitations for § 1983 actions brought in Colorado is
two years from the time the cause of action accrued.”).
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While state law governs the length of the limitations period applicable to Section
1983 claims, the accrual of a Section 1983 claim—when the statute of limitations begins
to run—is governed by federal law. Eden, 2022 WL 17576354, at *1 (citing Wallace, 549
U.S. at 388). Determining an accrual date must “begin[] with identifying ‘the specific
constitutional right’ alleged to have been infringed.” Herrera, 32 F.4th at 990 n.5
(quoting McDonough v. Smith, 139 S. Ct. 2149, 2151 (2019)). In general, accrual occurs
“when the plaintiff knows or has reason to know of the injury which is the basis of the
action.” Id. at 990; see also Smith v. City of Enid By & Through Enid City Comm’n, 149
F.3d 1151, 1154 (10th Cir. 1998) (“Since the injury in a § 1983 case is the violation of a
constitutional right, such claims accrue when the plaintiff knows or should know that his
or her constitutional rights have been violated” (internal citations and quotation marks
omitted).).
Here, Plaintiffs filed suit on January 18, 2023. Thus, any claims that accrued prior
to January 18, 2021 are time-barred. “Claims arising out of police actions toward a
criminal suspect, such as arrest, interrogation, or search and seizure, are presumed to
have accrued when the actions actually occur.” Beck v. City of Muskogee Police Dep’t,
195 F.3d 553, 558 (10th Cir. 1999) (quoting Johnson v. Johnson Cnty. Comm’n Bd.,
925 F.2d 1299, 1301 (10th Cir. 1991)). Accordingly, Plaintiffs cannot maintain any
Section 1983 claims relating to the December 9, 2020 search and arrest; the December
15, 2020 search and seizure of property, the December 29, 2020 traffic stop and
subsequent detention; the bringing of charges against Mr. Burnam on December 30,
2020, and the January 15, 2021 search of Plaintiffs’ property.
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2. Plaintiffs’ First, Fifth, Sixth, and Eighth Amendment Claims
In their Complaint, Plaintiffs allege that their lawsuit “arises under the United
States Constitution, particularly under the provisions of the First, Fourth, Fifth, Six[th],
Eighth and Fourteenth Amendment[s].” (Dkt. #1 at 10.) But Plaintiffs’ Complaint does
not describe in any meaningful way how their First, Fifth, Sixth, or Eighth Amendment
rights were violated, so any Section 1983 claims premised on these theories should be
dismissed.
In their response, Plaintiffs claim that Defendants violated their First Amendment
right to freely exercise their religion when they exhumed the miscarried baby. (Dkt. #23
at 12.) The Free Exercise Clause provides that “Congress shall make no law . . .
prohibiting the free exercise [of religion].” U.S. Const. amend I. It protects against
government regulation of religious belief or conduct and has been applied to the states
through the Fourteenth Amendment’s Due Process Clause. Cantwell v. Connecticut,
310 U.S. 296, 303 (1940). Even giving it the most liberal construction possible, a Free
Exercise claim cannot be gleaned from the Complaint. In any event, neither the
Complaint nor the response identifies Plaintiffs’ religious beliefs or suggests that the
officers who searched the property on January 29, 2021—pursuant to a valid warrant—
were aware of Plaintiffs’ religion or motivated by any religious animus.
Plaintiffs further claim in their response that their Eighth Amendment rights were
violated because they were subjected to “unnecessary and wanton infliction of pain” and
because Mr. Burnam was denied bond. (Dkt. #23 at 16.) As to the former argument,
none of the Plaintiffs allege that they were subjected to any physical force at all. The
only allegation is that Defendant Pecorella attempted to use a taser on Mr. Burnam but
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did not succeed—and any claim based on December 9, 2020 events is time-barred
anyway. As to the latter argument, while a claim of denial of bond may be based on the
Eighth Amendment’s Excessive Bail Clause, see Masad v. Nanney, No. 14-cv-00577-
MJW, 2014 WL 4265848, at *6 (D. Colo. Aug. 27, 2014), “because tort principles apply
to § 1983 claims, and because judicial officers have long been held to be superseding
causes that break the chain of proximate causation,” an Eighth Amendment excessive
bail claim can only succeed where: (1) there is an individual defendant who “deliberately
or recklessly misled the judicial officer who set bail;” and where (2) “bail would not have
been unconstitutionally excessive but for the defendant’s misrepresentations.” Tallie v.
Crawford Cnty., No. 22-3176-JWL-JPO, 2022 WL 17978446, at *5 (D. Kan. Dec. 28,
2022) (citations and alterations omitted). Here, Plaintiffs merely allege that “[t]he courts
failed to address bond . . . leaving [Mr. Burnam] with no bond on a F-4 felony theft for 42
days.” (Dkt. #1 at 14.) Thus, Plaintiffs do not allege that any of the Defendants were the
reason Mr. Burnam was held without bail, which is fatal to any Eighth Amendment
excessive bail claim.
Finally, Plaintiffs do not even mention the Fifth or Sixth Amendment in their
response. For these reasons, any claim based on the First, Fifth, Sixth, or Eighth
Amendments should be dismissed.
3. Fourth Amendment Claims
Most of Plaintiffs’ Section 1983 claims brought pursuant to the Fourth
Amendment are time-barred. The only event that happened after January 18, 2021 is
the January 29, 2021 search of Plaintiffs’ property that resulted in the exhumation of Ms.
Cienfuegos’ miscarriage. However, according to Plaintiffs’ Complaint, this search was
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conducted pursuant to a warrant. Plaintiffs do not allege that the warrant lacked
probable cause or was otherwise invalid. The Fourth Amendment only proscribes
searches that are unreasonable. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602,
619 (1989). Based on the allegations of the Complaint, the search at issue here was
reasonable as it was conducted pursuant to a warrant, the validity of which Plaintiffs do
not appear to challenge. Thus, Plaintiffs cannot maintain a Fourth Amendment claim
based on the January 29, 2021 search.
To the extent that Plaintiffs’ Complaint can be read to assert a Fourth
Amendment5 malicious prosecution claim, such a claim also fails. The five elements of a
Fourth Amendment malicious prosecution claim under Section 1983 are “(1) the
defendant caused the plaintiff’s continued confinement or prosecution; (2) the original
action terminated in favor of the plaintiff; (3) no probable cause supported the original
arrest, continued confinement, or prosecution; (4) the defendant acted with malice; and
(5) the plaintiff sustained damages.” Margheim v. Buljko, 855 F.3d 1077, 1085 (10th Cir.
2017). Ms. Cienfuegos was arrested pursuant to a misdemeanor warrant, which she
does not otherwise contest, thus she cannot meet the third element of a malicious
prosecution claim. As to Mr. Burnam, Defendants maintain that in September 2022, he
entered guilty pleas in two cases as part of a global plea agreement and disposition of
5 Defendants’ motion suggests that the malicious prosecution claim is brought
under the Fourteenth Amendment. (See Dkt. #12 at 10 n.3.) However, the Tenth Circuit
has “repeatedly recognized in this circuit that, at least prior to trial, the relevant
constitutional underpinning for a claim of malicious prosecution under § 1983 must be
the Fourth Amendment’s right to be free from unreasonable seizures.” Becker v. Kroll,
494 F.3d 904, 914 (10th Cir. 2007) (quotations omitted)
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all his criminal cases.6 See Hodgson v. Farmington City, 675 F. App’x 838, 840-41 (10th
Cir. 2017). Thus, the underlying criminal actions did not terminate in a way suggestive
of Mr. Burnam’s innocence and his malicious prosecution claim necessarily fails. See
Guinn v. Unknown Lakewood Police Officers, No. 10-cv-00827-WYD-CBS, 2010 WL
4740326, at *5 (D. Colo. Sept. 30, 2010) (“A conviction for a crime cannot be
considered a termination in favor of the accused, unless, for example, that conviction
has been reversed on direct appeal, expunged by executive order, declared invalid by a
state tribunal, or called into question by a federal court's issuance of a writ of habeas
corpus.”), report and recommendation adopted, No. 10-cv-00827-WYD-CBS, 2010 WL
4740316 (D. Colo. Nov. 16, 2010).
4. Fourteenth Amendment Claims
Defendants construe Plaintiffs’ Complaint to assert Fourteenth Amendment
claims based on various legal theories including conspiracy, due process, and equal
protection. As Plaintiffs’ Complaint is not entirely clear, and Plaintiffs themselves do not
seem to quarrel with this interpretation, the Court will follow suit.
A. Civil Conspiracy
To the extent that the Complaint purports to state a Section 1983 conspiracy
claim, the Court agrees with Defendants that such a claim must be dismissed.
The Tenth Circuit has recognized “a § 1983 conspiracy claim”; that is, “a
conspiracy to deprive a plaintiff of a constitutional or federally protected right under color
of state law.” Dixon v. City of Lawton, 898 F.2d 1443, 1449 n.6 (10th Cir. 1990). To
6 As addressed above, the Court may take judicial notice of these prior
proceedings without converting the motion to dismiss to a motion for summary
judgment.
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state a Section 1983 conspiracy claim, a plaintiff must allege “specific facts showing an
agreement and concerted action among defendants, an agreement upon a common,
unconstitutional goal, and concerted action taken to advance that goal. Bledsoe v.
Carreno, 53 F.4th 589, 609 (10th Cir. 2022) (internal citations omitted). A plaintiff “must
plead and prove not only a conspiracy, but also an actual deprivation of rights.” Snell v.
Tunnell, 920 F.2d 673, 701 (10th Cir. 1990). “[T]here is no requirement of an express
agreement, nor must the conspirators know all of the details of the conspiracy,” but the
plaintiff “must do more than make conclusory allegations of a conspiracy.” Erickson v.
City of Lakewood, Colo., 489 F. Supp. 3d 1192, 1203 (D. Colo. 2020).
Plaintiffs have not plausibly alleged Defendants conspired to violate their
constitutional rights. Plaintiffs claim that Defendants “conspired in a scheme to traffic the
minor child to [the biological mother] for helping the Weld County Sheriff gain access to
the plaintiff’s property for her anonymous tip.” (Dkt. #1 at 15.) In other words, Plaintiffs
appear to claim that Defendants, across three distinct Weld County entities (the WSCO,
the DHS, and the Weld County Attorney’s Office) agreed to have someone make a false
tip in order to take Plaintiffs’ children into custody and then search and confiscate
Plaintiffs’ property. But there are no specific, non-conclusory facts pled that support this
kind of extensive and complex scheme. Plaintiffs completely fail to allege who conspired
with whom to do what. Indeed, from Plaintiffs’ own allegations, it appears that
Defendant Timothy-Felice and the WCSO deputies were acting independently.
According to the Complaint, Defendant Timothy-Felice arrived at the residence with
police officers from the Town of Hudson, not the WCSO, and denied knowing who
Defendant Pecorella was when confronted by Mr. Burnam. Moreover, Plaintiffs concede
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that both Mr. Burnam and Ms. Cienfuegos were arrested by the WCSO on outstanding
warrants that had nothing to do with Defendant Timothy-Felice. The Court agrees with
Defendants that, at most, Plaintiffs’ allegations suggest that they were the subject of two
parallel investigations. Plaintiffs’ Section 1983 conspiracy claim should be dismissed.
B. Due Process
The Due Process Clause has both a procedural and a substantive component.
“When government action deprives a person of life, liberty, or property without fair
procedures, it violates procedural due process.” United States v. Deters, 143 F.3d 577,
582 (10th Cir. 1998). Substantive due process, on the other hand, “protects a small
number of ‘fundamental rights’ from government interference regardless of the
procedures used.” Id. “In general, governmental action infringing upon a fundamental
right will not survive judicial scrutiny unless it serves a compelling state interest and is
narrowly tailored to effect that interest.” Id.
The Complaint does not articulate how Plaintiffs’ procedural due process rights
were violated. In their response, they point to the children being taken into custody and
one child being separated from his siblings and placed with his unfit biological mother.
First, this claim is time-barred. Second, it does not state a claim.
Under the Fourteenth Amendment, parents have a protected liberty interest in
the care, custody, and control of their children. Troxel v. Granville, 530 U.S. 57, 65
(2000). This liberty interest is not absolute, however; the state has “a traditional and
transcendent interest in protecting children from abuse.” J.B. v. Washington Cnty., 127
F.3d 919, 927 (10th Cir.1997) (quotation marks and citation omitted). “When a state
agency seeks to remove children from the home, due process requires that the parents
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receive prior notice and a hearing, except in ‘extraordinary situations where some valid
governmental interest is at stake that justifies postponing the hearing until after the
event.’” Gomes v. Wood, 451 F.3d 1122, 1128 (10th Cir. 2006) (quoting Spielman v.
Hildebrand, 873 F.2d 1377, 1385 (10th Cir. 1989)). Here, Defendant Timothy-Felice had
a court order to see Mr. Burnam and Ms. Cienfuegos’ children because there was an
anonymous tip that there were “guns, methamphetamine and a sex ring going on inside
the home.” Then, Mr. Burnam and Ms. Cienfuegos were arrested on warrants. The
decision to take the children into custody did not violate their procedural due process
rights. See id. at 1130 (“Following the majority approach, we conclude that state officials
may remove a child from the home without prior notice and a hearing when they have a
reasonable suspicion of an immediate threat to the safety of the child if he or she is
allowed to remain there.”). When a pre-hearing removal is justified, the state must then
act promptly to provide a post-removal hearing. Id. at 1128. Plaintiffs do not allege
anywhere that Mr. Burnam and Ms. Cienfuegos were denied a prompt post-removal
hearing. Any procedural due process claim fails.
Plaintiffs also claim in their response that Mr. Burnam and Ms. Cienfuegos’s
substantive due process right to familial association was impinged upon by Defendants
Timothy-Felice, Denning, and Hughes. This claim, assuming arguendo that it is even
alleged in the Complaint, also fails.
First, Defendant Hudges is entitled to absolute immunity. “[P]rosecutors are
entitled to absolute immunity against suits brought pursuant to § 1983 for activities
intimately associated with the judicial process, such as initiating and pursuing criminal
prosecutions.” Gagan v. Norton, 35 F.3d 1473, 1475 (10th Cir. 1994) (cleaned up); see
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also Warnick v. Cooley, 895 F.3d 746, 751 (10th Cir. 2018) (“[I]t is well-established law
that ‘[p]rosecutors are entitled to absolute immunity’ for anything they do in their roles as
advocates, including their ‘decisions to prosecute.’”) (quoting Nielander v. Bd. of Cnty.
Comm’rs, 582 F.3d 1155, 1164 (10th Cir. 2009)). Prosecuting attorneys are absolutely
immune from suit under Section 1983 for decisions to prosecute, Hammond v. Bales,
843 F.2d 1320, 1321 (10th Cir. 1988), and to not prosecute, Dohaish v. Tooley, 670
F.2d 934, 938 (10th Cir. 1982). See also Schloss v. Bouse, 876 F.2d 287, 290 (2d Cir.
1989) (“If the prosecutor had absolute immunity only for the decision to prosecute and
not for a decision not to prosecute, his judgment could be influenced in favor of a
prosecution that sound and impersonal judgment would eschew.”). Prosecutors are also
entitled to immunity for any related investigatory or evidence-gathering functions
undertaken in connection with the prosecutorial function. See Scott v. Hern, 216 F.3d
897, 909 (10th Cir. 2000) (prosecutor’s immune conduct includes investigation, or lack
thereof). County attorneys who prosecute child neglect and delinquency proceedings
are likewise entitled to absolute immunity. See Stepanek v. Delta Cnty., 940 P.2d 364,
368 (Colo. 1997) (citing Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984)).
Turning to the DHS employees (Defendants Timothy-Felice and Denning), the
Supreme Court recognizes a substantive due process claim for government action that
deprives a person of life, liberty, or property in a manner so arbitrary it shocks the
judicial conscience. Doe v. Woodard, 912 F.3d 1278, 1300 (10th Cir. 2019) (citing City
of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). “Executive action that shocks the
conscience requires much more than negligence.” Id. “To show a defendant's conduct is
conscience shocking, a plaintiff must prove a government actor arbitrarily abused his
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authority or employed it as an instrument of oppression.” Id. (quoting Hernandez v.
Ridley, 734 F.3d 1254, 1261 (10th Cir. 2013)).
The government's “forced separation of parent from child, even for a short time,
represents a serious impingement on a parent's substantive due process right to familial
association.” Id. at 1300–01 (citation omitted). To state a right of familial association
claim, a plaintiff must allege that (1) the defendant intended to deprive the parent of
their protected relationship with their children, and that (2) the defendant either unduly
burdened the protected relationship or effected an unwarranted intrusion into that
relationship. Id. at 1301 (internal citations omitted).
Here, Plaintiffs do not allege conduct that shocks the conscious. First, there are
no allegations that Defendant Denning personally participated in any deprivation, so any
claim against him should be dismissed. See Henry v. Storey, 658 F.3d 1235, 1241 (10th
Cir. 2011) (“Personal participation in the specific constitutional violation complained of is
essential” in a Section 1983 action.). As for Defendant Timothy-Felice, during the
relevant period (post-January 18, 2021), Plaintiffs appear to only allege that on
September 23, 2021, she “submitted a true and correct criminal history of the
anonymous tip” in the juvenile court proceedings, apparently to show that the tipper had
numerous criminal convictions and was the subject of complaints to various Child
Protective Services in Colorado. This does not strike the Court as egregious and
outrageous behavior, and the Complaint is silent as to what happened as a result of this
hearing.
Accordingly, Plaintiffs’ due process claims should be dismissed under Rule
12(b)(6).
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C. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment guarantees that “[n]o
State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
U.S. Const. amend. XIV, § 1. “The Equal Protection Clause ‘keeps governmental
decision makers from treating differently persons who are in all relevant respects alike.’”
Soskin v. Reinertson, 353 F.3d 1242, 1247 (10th Cir.2004) (quoting Nordlinger v. Hahn,
505 U.S. 1, 10 (1992)); see also Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d
1219, 1233 (10th Cir. 2009) (“Equal protection ‘is essentially a direction that all persons
similarly situated should be treated alike.’”) (quoting City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439 (1985)). To state a claim under Section 1983 for violation of the
Equal Protection Clause, Plaintiffs must show Defendants acted under color of law and
discriminated against them. They do not plausibly allege that they suffered any
discrimination. This claim fails.
5. Qualified Immunity
In suits brought against officials in their individual capacities, officials may raise
the defense of qualified immunity. Kentucky v. Graham, 473 U.S. 159, 166–67 (1985).
The doctrine of qualified immunity protects government officials from individual liability
while in the course of performing their official duties so long as their conduct does not
violate clearly established constitutional or statutory rights. Washington v. Unified Gov’t
of Wyandotte Cnty., 847 F.3d 1192, 1197 (10th Cir. 2017). Once a defendant has
asserted a defense of qualified immunity, the burden shifts to the plaintiff who must
establish that (1) the defendant violated a right, and (2) the right was clearly
established. Puller v. Baca, 781 F.3d 1190, 1196 (10th Cir. 2015). “In their discretion,
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courts are free to decide which prong to address first in light of the circumstances of the
particular case at hand.” Weise v. Casper, 593 F.3d 1163, 1167 (10th Cir. 2010)
(quotation omitted).
In this case, Plaintiffs have failed to state any claim under Section 1983 against
the Individual Defendants. Therefore, they are entitled to qualified immunity.
6. Municipal Liability
Plaintiffs assert claims against both the Individual Defendants in their official
capacities and the County Defendants. “[A] section 1983 suit against a municipality and
a suit against a municipal official acting in his or her official capacity are the same.”
Stuart v. Jackson, 24 F. App’x. 943, 956 (10th Cir. 2001) (quoting Myers v. Oklahoma
Cnty. Bd. of Cnty. Comm’rs, 151 F.3d 1313, 1316 n.2 (10th Cir. 1998)). Accordingly,
where a plaintiff sues both the municipality and municipal official in an official capacity
under the same theory of recovery, courts have dismissed the official capacity claim as
“duplicative” or “redundant” of the claim against the municipal entity. See Leadholm v.
City of Commerce City, No. 16-cv-02786-MEH, 2017 WL 1862313, at *5 (D. Colo. May
9, 2017). Thus, the official capacity claims against the Individual Defendants should be
dismissed.
Turning to the claims against the County Defendants, “[l]ocal governing
bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive
relief where . . . the action that is alleged to be unconstitutional implements or executes
a policy statement, ordinance, regulation, or decision officially adopted and promulgated
by that body’s officers.” Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S.
658, 690 (1978) (footnote omitted). To state a claim for municipal liability, a plaintiff
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must plausibly allege the existence of a municipal policy or custom and a causal link
between the policy or custom and the injury alleged. See Mocek v. City of Albuquerque,
813 F.3d 912, 933 (10th Cir. 2015). He must also “show that the policy was enacted or
maintained with deliberate indifference to an almost inevitable constitutional injury.”
Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 769 (10th Cir. 2013). A
municipality can be liable under Section 1983 only where the municipality itself causes
the constitutional violation at issue. Monell, 436 U.S. at 690–91. Thus, to prove a
municipality is liable under Section 1983 for the acts of one of its employees, a plaintiff
must show (1) that a municipal employee committed a constitutional violation and (2)
that a municipal policy or custom was the moving force behind the constitutional
deprivation. Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004).
An official policy or custom may take one of the following forms:
(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 Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (quotation and
alteration marks omitted). Whatever species of policy or custom is alleged,
[t]he plaintiff must also demonstrate that, through its deliberate conduct, the
municipality was the “moving force” behind the injury alleged. That is, a
plaintiff must show that the municipal action was taken with the requisite
degree of culpability and must demonstrate a direct causal link between the
municipal action and the deprivation of federal rights.
Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997).
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Plaintiffs’ claims against the County Defendants should be dismissed because
they neither plausibly allege a constitutional violation nor identify any municipal policy or
custom that was the moving force behind a constitutional deprivation.
II. Defendant Jones’ Motion to Quash Alleged Service of Process of, or in
Alternative to Dismiss, Plaintiffs’ Complaint (Dkt. #37)
Defendant Jones moves to quash the alleged service of Plaintiffs’ Complaint. In
the alternative, he requests dismissal on the same grounds as the County and
Individual Defendants. Plaintiffs’ Complaint suffers the same pleading infirmities with
respect to the Individual and County Defendants as it does with respect to Defendant
Jones, and can be dismissed for the same reasons. However, the Court also agrees
with Defendant Jones that he was not properly served under Rule 4.
Federal Rule of Civil Procedure 12(b)(5) allows for dismissal of an action without
prejudice based on insufficient service of process. In opposing a motion to dismiss for
insufficient process or insufficient service of process, Plaintiffs bear the burden to make
a prima facie case that they have satisfied statutory and due process requirements so
as to permit the court to exercise personal jurisdiction over the defendant. Carson v.
United States, No. 21-cv-01596-PAB-STV, 2023 WL 155875, at *2 (D. Colo. Jan. 11,
2023) (citations omitted). Plaintiffs must demonstrate that the procedure employed to
effect service satisfied the requirements of Fed R. Civ. P. 4. Id. In ruling on a Rule
12(b)(5) motion, the Court “may consider any affidavits and other documentary
evidence submitted by the parties and must resolve any factual doubt in a plaintiff's
favor.” Kelley v. City of Atchison, Kan., No. 221CV02123JARTJJ, 2021 WL 5140320, at
*1 (D. Kan. Nov. 4, 2021) (internal quotation marks and citations omitted).
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a. Rule 4(m)
Under Fed. R. Civ. P. 4(m), “[i]f a defendant is not served within 90 days after the
complaint is filed, the court—on motion or on its own after notice to the plaintiff—must
dismiss the action without prejudice against that defendant or order that service be
made within a specified time” unless the plaintiff shows good cause for the delay. A
court applying these rules engages in a two-part inquiry. Id. (citing Sarnella v. Kuhns,
No. 17-cv-02126-WYD-STV, 2018 WL 1444210, at *2 (D. Colo. March 23, 2018)). First,
the Court determines whether the plaintiff has shown good cause for his failure to timely
serve the defendant. Id. If good cause is shown, then an extension of the time for
service of process is mandatory. Id. If good cause is not shown, then the Court
proceeds to the second step of the analysis and determines whether a permissive
extension is warranted. Id.
Here, Plaintiffs’ Complaint was filed on January 18, 2023. The deadline for
service under Rule 4(m) was April 18, 2023. Plaintiffs did not file a purported Return of
Service until May 18, 2023 (which, as discussed below, fails to establish that Defendant
Jones was served prior to the deadline). (See Dkt. #27 at 7.) Thus, service was
untimely.
In response, Plaintiffs cite their status as pro se parties and note that they did
attempt service via U.S. mail in March 2023 (see Dkt. #13), although Rule 4 does not
authorize service via U.S. mail under these circumstances. See Fed. R. Civ. P 4(e).
They also sought subpoenas on April 19, 2023 (see Dkt. #21), but this request was
denied by the Clerk of Court for procedural reasons (Dkt. #22). Although Plaintiffs’ pro
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se status does not excuse them from following the rules, the Court credits their good
faith attempts at service and finds that dismissal under Rule 4(m) is not warranted.
b. Rule 4(e)
But Defendant Jones also raises serious concerns with how personal service
was purportedly accomplished. Rule 4(e) governs service on individuals within the
United States:
Unless federal law provides otherwise, an individual—other than a minor,
an incompetent person, or a person whose waiver has been filed—may be
served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts
of general jurisdiction in the state where the district court is located or where
service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the
individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place
of abode with someone of suitable age and discretion who resides
there; or
(C) delivering a copy of each to an agent authorized by appointment
or by law to receive service of process
Fed. R. Civ. P. 4(e).
Plaintiffs filed a Return of Service as to Defendant Jones, which was signed by
Emily Philemon, a process server with On Time Legal Process Serving LLC. (Dkt. #27
at 7.) Ms. Philemon states, under penalty of perjury, that Mr. Jones was “served by
refusal” at 3132 Argyll Lane, Johnstown, CO 80534 on May 10, 2023. Confusingly, Ms.
Philemon gives two times for service, 11:40 a.m. and 4:10 p.m. She states Mr. Jones
was sitting outside the house smoking a cigarette when “the server” arrived, and that he
went inside when “the server” approached him with documents. She says Defendant
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Jones refused to answer the door and “the server” left the documents on the porch. She
describes Mr. Jones as 50 years old, 5’11”, 270 pounds, and having grey hair and no
glasses.
Mr. Jones submitted an affidavit stating that he is 6’2”, 220 pounds, and has dark
brown and beard, and a muscular build. (Dkt. #37-1.) He states he is a non-smoker and
wears glasses, that he did not arrive home on May 10, 2023 until 4:23 p.m., and that no
one approached his house after that time.
In their response, Plaintiffs include several pictures of Defendant Jones taken
from the internet that they claim matches the description of the process server.
Defendant Jones then replied, attaching a supplemental affidavit (Dkt. #43-1) and a
video doorbell recording from his home on May 10, 2023. As to Plaintiffs’ photographs,
Defendant Jones admits that he appears in the first three (but not the fourth), and
admits that he has a graying beard, but points out that he has dark hair in all three
photos and is wearing glasses in one of the photos. He further states that the video
shows him leaving the home at 9:29 a.m. and returning home at 4:23 p.m. At 11:38
a.m., an unidentified while male approached the home, rang the doorbell, knocked on
the door, and left a stack of papers underneath a package next to the front door. No
woman appeared at his home at any time.
The Court has reviewed the videos and is convinced that the Return of Service is
unreliable, and that service has not been properly effected on Defendant Jones. The
Return of Service indicates that service by refusal occurred at 11:40 a.m., which is
around when the man in the video arrives at the house, but the narrative portion states
that service occurred at 4:10 p.m., and the video provided by Defendant Jones shows
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no evidence of any individual appearing at the front door of the home at this time. The
Court can come up with a few different theories to explain the errors and discrepancies,
but put simply, the Court does not believe that the Return of Service is accurate.
Plaintiffs have not met their burden in proving adequate service, and the Court has no
jurisdiction over Defendant Jones.
CONCLUSION
WHEREFORE, for the foregoing reasons, it is hereby RECOMMENDED that the
Motion to Dismiss Plaintiffs’ Complaint (Dkt. #12) and Motion to Quash Alleged Service
of Process of, or in Alternative to Dismiss, Plaintiffs’ Complaint (Dkt. #37) be
GRANTED, and that Plaintiffs’ Complaint for a Civil Case (Dkt. #1) be DISMISSED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions.
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,
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91 F.3d 1411, 1412-13 (10th Cir. 1996).
BY THE COURT
Date: November 17, 2023 ______
Denver, Colorado N. Reid Neureiter
United States Magistrate Judge
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