Ledford v. Krieger et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Maritza Dominguez Braswell
Civil Action No. 23–cv–02320–CNS–MDB
CHARLES WILLIAM LEDFORD,
Plaintiff,
v.
MARCIA S. KRIEGER,
MICHAEL J. WATANABE,
JAIME A. PENA,
DAVID R. STEINMAN,
CLARISSA L. COATE, and
GREG M. FLYNN,
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Maritza Dominguez Braswell
This matter is before the Court on Federal Defendants’ Motion to Dismiss.1 ([“Motion to
Dismiss” or “Motion”], Doc. No. 65.) Plaintiff has responded, and Defendants have replied.
([“Response”], Doc. No. 74; [“Reply”], Doc. No. 79.) After reviewing the Motion, briefing, and
relevant law, the Court RECOMMENDS that the Motion to Dismiss be GRANTED.
PRO SE SUMMARY
1 The “Federal Defendants” are the Honorable Marcia S. Krieger, the Honorable Michael J.
Watanabe, Jaime A. Peña, David R. Steinman, Clarissa L. Coate, and Greg M. Flynn. Plaintiff’s
claims against Defendant Virginia L. Grady were previously dismissed. (See Doc. No. 94.)
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The Court recommends dismissing your claims. Defendants Krieger, Watanabe, Peña,
and Steinman have immunity, which bars your claims against them. Additionally, under federal
law, your criminal conviction or sentence must be overturned or otherwise invalidated before
you can challenge the underlying actions leading to the conviction. Because neither your
conviction nor your sentence has been overturned, the claims against Defendants Coate and
Flynn are barred, as well. 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
This action relates to the 2004 criminal prosecution of Plaintiff. In October 2004,
Plaintiff was charged with conspiracy to defraud the United States. (Doc. No. 65 at 2; see also
[“Indictment”], Doc. No. 65-1.) In March 2005, Plaintiff signed a plea agreement and was
sentenced to 24 months of imprisonment, 3 years of supervised release, $506,000 in restitution,
and a mandatory $100 special assessment fee. (Doc. No. 65 at 3; see also [“Plea Agreement”],
Doc. No. 65-2.) Judgment was entered in June 2005, and Plaintiff did not appeal at that time.
(Doc. No. 65 at 3; see also [“Judgment”], Doc. No. 65-3.) In December 2022, nearly twelve
years after his sentence and supervised release ended, Plaintiff filed a motion to vacate his
conviction, arguing that “[he] and the defendant [in the criminal case] were not the same entity
and therefore, [he] was not party to” his criminal prosecution. (Doc. No. 65 at 4.) The court
construed the motion as a request for relief under 28 U.S.C. § 2255 and denied it for lack of
subject matter jurisdiction. See United States v. Ledford, No. 04-cr-00419-CNS, 2023 WL
2375087, at *1 (D. Colo. Mar. 6, 2023).
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Plaintiff initiated the instant action on September 5, 2023. (Doc. No. 1.) In his operative
Complaint, he alleges several Defendants violated his rights under the Fourth Amendment
warrant clause and Fifth Amendment due process clause. (See generally Doc. No. 13.) First, he
claims Defendants Coate and Flynn “misled” District Judge Krieger by obtaining an arrest
warrant without an “affidavit of probable cause” and “without particularly describing him as
[the] entity” to be arrested. (Id. at 1.) Next, he alleges Judge Krieger and Magistrate Judge
Watanabe denied him an identity hearing, pursuant to Fed. R. Crim. P. 5(c)(3), to determine
whether he was the person named on the arrest warrant. (Id. at 1-2.) Finally, he asserts Assistant
United States Attorneys Peña and Steinman prosecuted his case knowing there was no affidavit
related to probable cause or identity. (Id. at 2-3.)
Defendants now move to dismiss Plaintiff’s claims pursuant to Fed. R. Civ. P. 12(b)(1)
and 12(b)(6), arguing (1) Defendants are immune from suit; (2) a motion under 28 U.S.C § 2255
is the exclusive remedy for the issues raised; (3) the claims are barred under Heck v. Humphrey,
512 U.S. 477 (1994); (4) the statute of limitations has run; (5) there is no Bivens2 remedy for the
claims asserted; and (6) Plaintiff does not state a plausible claim for relief. (Doc. No. 65 at 6.)
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
2 The Court agrees with Defendants that, because it appears Plaintiff has brought constitutional
claims for monetary damages against federal officials in their individual capacities, the claims
fall under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388
(1971). (See Doc. No. 65 at 6 n.5; see also Doc. No. 13 at 3 (plaintiff seeking to “sue for [his]
losses”).)
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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
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).
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).
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
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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
Though Defendants make various arguments, the Court addresses the absolute immunity
and Heck arguments first. See Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995) (noting
“the importance of resolving immunity questions at the earliest possible stage in litigation.”);
Baldauf v. Hyatt, 120 F. App’x 288, 289 (10th Cir. 2005) (recognizing Heck as a “threshold
issue”).
I. The claims against Defendants Krieger, Watanabe, Peña, and Steinman are barred
by absolute immunity.
Absolute immunity bars Plaintiff’s claims against several of the Federal Defendants. The
Court addresses judicial immunity first, then prosecutorial immunity.
A. Defendants Krieger and Watanabe are entitled to judicial immunity.
Judges are absolutely immune from suit for actions taken in their judicial capacity, unless
the judge was acting in the clear absence of all jurisdiction. Mireles v. Waco, 502 U.S. 9, 11-12
(1991). Such immunity “is not overcome by allegations of bad faith or malice.” Id. at 11. To
determine whether an act is a judicial act taken in a judge’s judicial capacity, the Court must
consider whether the act is a function normally performed by a judge, and whether the affected
party was dealing with the judge in her judicial capacity. Stump v. Sparkman, 435 U.S. 349, 362
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(1978). The Tenth Circuit has held that judicial immunity can bar Bivens claims against federal
judges. See Van Sickle v. Holloway, 791 F.2d 1431, 1435 (10th Cir. 1986).
Plaintiff’s allegations against Defendants Krieger and Watanabe relate to judicial actions
they took in connection with Plaintiff’s criminal case, including denying Plaintiff an identity
hearing under Fed. R. Crim. P. 5(c)(3). (See Doc. No. 13 at 1.) In other words, the relevant acts
are judicial acts “normally performed by a judge” acting in his or her judicial capacity. Stump,
435 U.S. at 362. Moreover, there is nothing to suggest Defendants Krieger and Watanabe’s
actions were “taken in the complete absence of all jurisdiction.” Mireles, 502 U.S. at 11–12. To
the extent Plaintiff argues an identity hearing must take place “before jurisdiction is established
and any [w]arrant can be issued,” (see Doc. No. 13 at 7), he is mistaken—a Rule 5(c)(3) identity
hearing is only necessary where the initial appearance is not in the district where the offense was
allegedly committed, which was not the case here. See Fed. R. Crim. P. 5(c)(3). And while
Plaintiff cites the dissenting opinion from Pierson v. Ray, 386 U.S. 547 (1967) (Douglas, J.,
dissenting), for the proposition that judges are not always immune, Pierson was an 8-1 decision
affirming the application of judicial immunity in a § 1983 case, and thus does not support
denying judicial immunity in this case. Id. at 553-54. Defendants Krieger and Watanabe are
therefore entitled to absolute judicial immunity, and the claims against them should be
dismissed.
B. Defendants Peña and Steinman are entitled to prosecutorial immunity.
Federal prosecutors are entitled to absolute immunity from suits for civil damages when
such suits are based on the prosecutor’s performance of functions “intimately associated with the
judicial phase of the criminal process.” See Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976);
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see also Butz v. Economou, 438 U.S. 478, 504 (1978) (holding federal prosecutors are immune in
Bivens-type suits).
Here, Plaintiff alleges Defendants Peña and Steinman prosecuted his criminal case
knowing there was no affidavit of probable cause or a Rule 5(c)(3) identity hearing on the court
record. (Doc. No. 13 at 2-3.) By Plaintiff’s own allegations, the acts in question are “‘intimately
associated with the judicial process’ such as initiating and pursuing a criminal prosecution.”
Snell v. Tunnell, 920 F.2d 673, 686 (10th Cir.1990) (quoting Imbler, 424 U.S. at 430); see also
Glaser v. City & Cnty. of Denver, Colo., 557 F. App’x 689, 705 (10th Cir. 2014) (affirming
prosecutorial immunity where plaintiff alleged defendants committed constitutional violations at
trial). Thus, the claims against Defendants Peña and Steinman are barred by prosecutorial
immunity.
II. The claims against Defendants Coate and Flynn are barred by Heck.
Next, because Plaintiff is challenging the basis for and validity of his criminal conviction
and sentence, his claims against the remaining Defendants Coate and Flynn are barred by Heck v.
Humphrey, 512 U.S. 477 (1994). Pursuant to Heck, if a judgment for damages necessarily would
imply the invalidity of a criminal conviction or sentence, the action does not arise until the
conviction or sentence has been reversed on direct appeal, expunged by executive order, declared
invalid by an authorized state tribunal, or called into question by the issuance of a federal habeas
writ. Id. at 486-87. The Tenth Circuit has held that Heck, which was litigated pursuant to 42
U.S.C. § 1983, also applies to Bivens actions. See Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir.
1996) (per curiam).
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Here, Plaintiff does not allege, and the record does not show, that the conviction or
sentence from the 2004 criminal proceeding has been reversed, expunged, declared invalid, or
called into question. Indeed, Plaintiff’s 28 U.S.C. § 2255 challenge was denied. See United
States v. Ledford, No. 04-cr-00419-CNS, 2023 WL 2375087, at *1 (D. Colo. Mar. 6, 2023).3
Plaintiff’s mere assertion that the charges against him are “null and void,” (see Doc. No. 74 at 1),
is insufficient to overcome the Heck bar. Plaintiff’s claims against Defendants Coate and Flynn
must therefore be dismissed pursuant to Heck.4
CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS Federal Defendants’
Motion to Dismiss (Doc. No. 65) be GRANTED, and Plaintiff’s claims against the remaining
Defendants be DISMISSED.5
3 Because the criminal proceeding is relevant to this case and a publicly available record, the
Court takes judicial notice of it. See Hodgson v. Farmington City, 675 F. App’x 838, 840-41
(10th Cir. 2017).
4 Even if the Court had subject matter jurisdiction over this action, it is unlikely that any Bivens
claims could proceed under these facts. See Egbert v. Boule, 596 U.S. 482, 491 (2022) (noting
that recognizing a cause of action under Bivens is a “disfavored judicial activity”); see also Silva
v. United States, 45 F.4th 1134, 1136 (10th Cir. 2022) (“[E]xpanding Bivens is . . . an action that
is impermissible in virtually all circumstances.”); Doe v. Reno, 172 F.3d 62 (10th Cir. 1999)
(holding plaintiff challenging the validity of a conviction and sentence has a remedy under 28
U.S.C. § 2255). And in any event, the statute of limitations for a Bivens claim arising in
Colorado is two years, see Williams v. Garcia, 2015 WL 1740555, at *1 n.1 (D. Colo. Apr. 14,
2015), and Plaintiff initiated this action nearly twenty years after the criminal proceeding. (See
Doc. No. 1.)
5 Although dismissal of a pro se claim under Rule 12 is ordinarily denied without prejudice, Gee
v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010), the Court has discretion to dismiss a pro se
plaintiff’s complaint with prejudice where “amendment would be futile[.]” Avery v. Wade, No.
22-4093, 2022 WL 17544077 at *1 (10th Cir. Dec. 9, 2022). Here, Plaintiff already had the
opportunity to amend and—given the concerns regarding procedural bars and subject matter
jurisdiction—the Court believes any further amendment would be futile. (Docs. No. 1, 13.)
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The Clerk of Court is directed to mail a copy of this Recommendation to Plaintiff:
Charles William Ledford
7430 Delmonico Drive
Colorado Springs, CO 80919
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.
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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
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 18th day of February, 2025.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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