Carrillo v. Romero

ALFONSO CARRILLO, LUIS E. GUTIERREZ, JANETT PINA, MARIA E. CARRILLO, HUGO A. PACHECO,SELVIN CARDOZA, LAURA P. GUTIERREZ, GERMAN JASSO BRUNO JOSE M. VELAZQUES,FRANCISCO SANTOS, SILVIA DORADO, and RAYMUNDO CASTILLO Plaintiffs, v. DOUGLAS LEO ROMERO, in his official and individual capacity,TIMOTHY EDSTROM in his official and individual capacity, TRACI CHRISTY,in her official and individual capacity, LAW OFFICE OF DOUGLAS L. ROMERO,COLORADO SUPREME COURT'S OFFICE OF ATTORNEY REGULATION COUNSEL,JAMES S. SUDLER, in his official and individual capacity,and KIM E. IKELER, in her official and individual capacity, Defendants.

Civil Action No. 13-cv-2728-WJM-MEH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: November 21, 2013

Judge William J. Martínez

ORDER SUA SPONTE DISMISSING CASE

On October 4, 2013, Plaintiffs filed a Complaint pursuant to 42 U.S.C. § 1983 alleging that Defendants violated their constitutional rights, engaged in legal malpractice, and breached a fiduciary duty. (ECF No. 1.) Under Federal Rule of CivilProcedure 12(b)(6), the Court may dismiss a complaint sua sponte¹ "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." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). For the reasons set forth below, the Court finds that Plaintiffs' Complaint fails to state a claim upon which relief could be granted and that amendment would be futile.

I. FACTUAL BACKGROUND

Plaintiffs, who are Hispanic, allege in the Complaint that on January 3, 2012, several of them filed pro se a civil complaint in Case No. 12-cv-3-WJM-MEH, asserting that they were harmed by alleged fraudulent foreclosure practices engaged in by the various law firms, as counsel for note holders, who allegedly conspired with the Denver District Attorney and various local news agencies to deprive the Plaintiffs of their homes, in violation of Plaintiffs' federal due process and statutory rights.² Plaintiffs retained the Defendant Romero Law Firm to represent their interests in Civil Action No. 12-cv-3-WJM-MEH and paid a $10,000 retainer fee. (ECF No. 1 at 16.)

Plaintiffs supplied the Defendant Romero Law Firm and the law firm's attorneys, Defendants Romero, Edstrom, and Christy (collectively the "Romero Law Firm Defendants"), with evidence to support their claims in that case. Plaintiffs assert thatDefendant Romero failed to disclose to them, during the pendency of Case No. 12-cv-3-WJM-MEH, that he was under investigation by the Colorado Office of Attorney Regulation Counsel ("OARC") for ethical violations, including conversion of client funds. Plaintiffs maintain that during the investigation, the OARC precluded Mr. Romero from continuing to represent the plaintiffs in Case No. 12-cv-3-WJM-MEH and that the civil action was ultimately dismissed despite Plaintiffs' meritorious claims. (ECF No. 1 at 20-24.)

In this action, Plaintiffs claim that the Romero Law Firm Defendants conspired with Defendants OARC, James S. Sudler, and Kim E. Ikeler (together "the OARC Defendants") and the foreclosing law firms (the defendants in Case No. 12-cv-3-WJM-MEH) to "protect the ongoing multi-billion 'Home Theft Industry,'" in deprivation of the Plaintiffs' constitutional and civil rights and the Fair Housing Act. (Compl. at 20.) Plaintiffs further assert that the Romero Defendants and the OARC Defendants engaged in a conspiracy with "official regulatory agencies" to violate Plaintiffs' federal statutory and constitutional rights. (Id. at 21.) Additionally, Plaintiffs allege that Defendant OARC maintained a groundless prosecution against Plaintiff Alfonso Carrillo in 2012 for filing lawsuits on behalf of others, in an attempt to interfere with Plaintiff Carrillo's constitutional right to file complaints in state and federal court. (Id. at 25.)

Plaintiffs assert claims for deprivation of their civil rights under 42 U.S.C. §§ 1981, 1982, 1983, and 1985, and the Fair Housing Act, 42 U.S.C. § 3601, et seq., as well as various state law tort claims. Plaintiffs further assert violations of federal criminal statutes. They seek monetary and injunctive relief, including an order for the investigation and suspension from the practice of law of each named individual Defendant.

II. CLAIMS AGAINST ROMERO LAW FIRM DEFENDANTS

As set forth above, Plaintiffs allege that the Romero Law Firm Defendants violated their rights under 42 U.S.C. §§ 1981, 1982, 1983, and 1985, and the Fair Housing Act, 42 U.S.C. § 3601, et seq. The Court will address each in turn below.

A. Section 1981

To establish a prima facie case under § 1981, the Plaintiffs must show: "(1) that [they belong to] a protected class; (2) that the defendant had the intent to discriminate on the basis of race; and (3) that the discrimination interfered with a protected activity as defined in § 1981." Hampton v. Dillard Dep't Stores, Inc., 247 F.3d 1091, 1101-02 (10th Cir. 2001). Section 1981 protects four interests: (1) the right to make and enforce contracts; (2) the right to sue, be parties, and give evidence; (3) the right to the full and equal benefit of the laws; and (4) the right to be subjected to like pains and punishments. See Shawl v. Dillard's, Inc., 17 F. App'x 908, 910 (10th Cir. 2001); 42 U.S.C. § 1981.

The Complaint's "Causes of Action" section provides: "Violation and Interference of 42 U.S.C. § 1981; (a) Equal protection rights, (b) Due Process in "Making and enforcing contracts" and, (c) Protection against impairment." (ECF No. 1 at 5.) However, the factual allegations in the Complaint fail to directly link any of the allegedly wrongful acts with the right to make and enforce contracts. The Court takes no position on whether Plaintiffs may be able to bring a claim against the Romero Law Firm Defendants for breach of contract or ineffective assistance of counsel based on the way in which these Defendants represented (or failed to represent) Plaintiffs' interests inCase No. 12-cv-3. However, because Plaintiffs have made no effort to tie any of their factual allegations to a § 1981 claim, the Court has little difficulty concluding that Plaintiffs have failed to allege sufficient facts to put Defendants on notice as to the nature of such claim. This failure is a basis for dismissal. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 546 (2007) (to survive a Rule 12(b)(6) dismissal, a complaint "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."); Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (stating that a plaintiff's complaint must set forth more than a threadbare recital "of the elements of a cause of action, supported by mere conclusory statements").

B. Section 1982

Section 1982 provides that "[a]ll citizens of the United States shall have the same right . . . as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and personal property." The statute is intended to prohibit discrimination based on race in the sale and rental of real and personal property. See Tennessee v. Lane, 541 U.S. 509, 561 (2004) (Scalia, J., dissenting) (describing § 1982 as "banning public or private racial discrimination in the sale and rental of property"); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413 (1968); see also Delaunay v. Collins, No. 02-8097, 97 F. App'x 229, 233 (10th Cir. March 2, 2004) (discussing elements of § 1982 claim).

Plaintiffs do not allege facts in the Complaint to show that the Romero Law Firm Defendants treated them differently than Caucasian persons with regard to any of the property rights protected by § 1982. While the nature of Plaintiffs' claims in Case No. 12-cv-3-WJM-MEH related to their rights to possess and own real property, nothingabout the claims in this case involves real property. Plaintiffs had an attorney-client relationship with the Romero Law Firm Defendants where they paid these Defendants a sum of money in exchange for attorney services. There is no real property implicated in that kind of relationship. Accordingly, the Court finds that Plaintiffs have failed to state a § 1982 claim.

C. Section 1983

Section 1983 provides a cause of action against a person who deprives another of a constitutional or federal statutory right while acting under color of state law. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 151 (1970); see also Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 & n.18 (1982) (liability attaches only to conduct occurring under color of state law, and conduct constituting "state action" under the Fourteenth Amendment satisfies this requirement). "[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999).

Plaintiffs cannot state a § 1983 claim against the Romero Law Firm Defendants because they are indisputedly private entities or individuals. Plaintiffs make no allegation as to any actions taken under the color of law. Therefore, regardless of whether the Romero Law Firm Defendants acted with a discriminatory purpose, or otherwise violated Plaintiffs' constitutional rights, § 1983 does not provide relief.

Additionally, to the extent Plaintiffs attempt to allege that the Romero Law Firm Defendants conspired with state officials to deprive them of rights, these allegations fail to state a claim as they are vague and conclusory. See Tonkovich v. Kan. Bd. ofRegents, 159 F.3d 504, 533 (10th Cir. 1994) ("Conclusory allegations of conspiracy are insufficient to state a valid § 1983 claim."); Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir. 1989) (to state a cause of action for conspiracy under § 1983, a plaintiff must "allege specific facts showing agreement and concerted action among defendants.").

For these reasons, the Court finds that Plaintiffs have failed to state a claim for a violation of 42 U.S.C. § 1983 by any...