Marshall v. Dix

640 F.Supp.3d 1033

Raymond MARSHALL, Plaintiff, v. Chief Investigator Linda DIX, City of Colorado Springs, Michael Anderson, Margret Radford,Jan Martin, Scott Hente, and Larry Small, Defendants.

Civil Action No. 21-cv-01971-NYW-STV

United States District Court, D. Colorado

Signed November 14, 2022

David Nathan Fisher, Jane Holse Fisher-Byrialsen, Fisher & Byrialsen PLLC, Denver, CO, for Plaintiff.

William Thomas O'Connell, III, Wells Anderson & Race, LLC, Denver, CO, for Defendant Linda Dix.

ORDER ON MOTIONS TO DISMISS

Nina Y. Wang, United States District Judge

This matter is before the Court on Defendant Chief Investigator Linda Dix's Motion to Dismiss (the "Dix Motion to Dismiss") [Doc. 33] and the Motion to Dismiss Under Rule 12(b)(6) by the City Defendants (the "City Motion to Dismiss," and collectively with the Dix Motion to Dismiss, "the Motions to Dismiss"). [Doc. 34].¹ Upon review of the Motions, the related briefing, and the applicable case law, the Dix Motion to Dismiss is GRANTED in part and DENIED in part, and the City Motion to Dismiss is GRANTED.

BACKGROUND

The Court draws the following facts from the Amended Verified Civil Rights Complaint With Request for Trial By Jury (the "Amended Complaint") and takes them as true for the purposes of the instant Motions to Dismiss. [Doc. 25]. In 2009, the El Paso County District Attorney's Office "opened an investigation" into Plaintiff Ray Marshall ("Plaintiff" or "Mr. Marshall") and his real estate business, LandCo Equity Partners ("LandCo"). [Id. at ¶ 21]. The investigation was spearheaded by the then-Investigator in Charge, Defendant Linda Dix ("Ms. Dix"). [Id. at ¶¶ 21, 34, 36]. The Amended Complaint describes the investigation as an investigation "into Mr. Marshall's real estate ventures from 2000 to 2009" and "into all aspects of Mr. Marshall's life starting as early as 1996." [Id. at ¶ 41]. In November 2009, a grand jury indicted Mr. Marshall on charges "relating to real estate transactions from 2000 to 2007" (the "2009 Case"). [Id. at ¶¶ 23, 43].² Mr. Marshall alleges that the grand jury's indictment was based on Ms. Dix's "false evidence and omission of exculpatory evidence." [Id. at ¶ 23]. After the 2009 Case's trial, which began in March 2012, Mr. Marshall was acquitted on all 42 counts brought against him. [Id. at ¶¶ 24, 26, 49].

Approximately one month before the 2009 Case's trial, El Paso County prosecutors filed a new criminal case against Mr. Marshall (the "2012 Case"). [Id. at ¶ 25]. The charges in the 2012 Case arose "out of a tri-party real estate development deal" between LandCo, the City of Colorado Springs, Colorado (the "City"), and the United States Olympic Committee ("USOC").³ [Id. at ¶ 55]. According to Plaintiff, LandCo had agreed to renovate and develop two buildings owned by LandCo so that the USOC could use the buildings for temporary office space and a permanent USOC headquarters. [Id. at ¶ 56]. The City was to pay for the construction and renovation costs and the USOC was to sign a long-term lease with the City, as well as cover the operating expenses of the buildings. [Id.]. However, the development deal "did not go through as planned," and Plaintiff alleges that the City breached the agreement, resulting in Mr. Marshall losing several million dollars of his personal money. [Id. at ¶¶ 57-58]. Plaintiff asserts that the 2012 Case stems from an Application and Affidavit for Arrest Warrant (the "Arrest Warrant Affidavit"), drafted and filed by Ms. Dix, in which Ms. Dix "knowingly failed to include exculpatory information and also included many outright false statements." [Id. at ¶ 61]. After a lengthy process, the charges against Mr. Marshall in the 2012 Case were eventually dismissed with prejudice on May 20, 2020. [Id. at ¶ 31].⁴

Plaintiff claims that the 2012 Case was the result of a conspiracy between Ms. Dix and a number of then-City Council members and City employees: Defendants Michael Anderson, Margaret Radford,⁵ Jan Martin, Scott Hente, and Larry Small (collectively, with the City, the "City Defendants").⁶ See, e.g., [id. at ¶¶ 71-72, 79]. Specifically, according to Mr. Marshall, the individual City Defendants and the USOC "colluded against Mr. Marshall to sabotage" the USOC deal, "so that they could insulate themselves from adverse market conditions" and induce Mr. Marshall to sell them one of LandCo's building for a low price. [Id. at ¶ 71]. Mr. Marshall contends that this collusion is evidenced in a number of audio tapes of City Council executive sessions and emails⁷ sent to and from the City Defendants. [Id. at ¶¶ 71, 73]. For example, Plaintiff represents that in one recording, Defendant Hente stated that he planned to meet with the then-District Attorney "to see if there were ways to bring charges against Mr. Marshall in [an] attempt to circumvent the USOC real estate deal." [Id. at ¶ 78(E)]. Ms. Dix came into possession of these audio tapes in 2011, but hid the tapes "for almost a decade," [id. at ¶ 73], despite "numerous" court orders that "all discovery be turned over to Mr. Marshall's defense attorneys." [Id. at ¶ 75]. Mr. Marshall alleges that Ms. Dix and "the City entered into an agreement to hold those tapes secret," and Ms. Dix withheld this purportedly exculpatory evidence "at the urging of an in conjunction with City, the City [Council] Defendants and Defendant Anderson." [Id. at ¶¶ 73-74]. According to Plaintiff, Ms. Dix and the City Defendants "conspired for years to keep the emails and tapes secret to continue the malicious prosecution against Mr. Marshall." [Id. at ¶ 76].

Mr. Marshall initiated this case on July 20, 2021 and filed the Amended Complaint on October 26, 2021. [Doc. 1; Doc. 25]. In the Amended Complaint, Mr. Marshall raises the following claims: (1) a malicious prosecution claim under 42 U.S.C. § 1983; (2) a § 1983 due process claim; (3) a § 1983 claim pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (a "Franks claim"); (4) a § 1983 conspiracy claim; and (5) a municipal liability claim against the City. See generally [Doc. 25 at 34-42]. Aside from Plaintiff's fifth claim, Plaintiff does not specify against whom each claim is brought. [Id.].

Ms. Dix and the City Defendants each separately moved to dismiss Plaintiff's claims in their entirety. [Doc. 33; Doc. 34]. Ms. Dix couches her arguments under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing that Plaintiff's claims against her should be dismissed because (1) she is entitled to absolute immunity, [Doc. 33 at 5], and (2) she is entitled to qualified immunity. [Id. at 9]. In addition, she argues that portions of Mr. Marshall's claims should be dismissed for lack of standing and because they are untimely. [Id. at 3, 18]. The City Defendants, meanwhile, move to dismiss Plaintiffs' claims against them for failure to state a claim upon which relief can be granted. See [Doc. 34]. Each Motion to Dismiss is fully briefed. See [Doc. 37; Doc. 38; Doc. 41; Doc. 42]. These matters are thus ripe for disposition.

LEGAL STANDARD

Under Rule 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). In deciding a motion under Rule 12(b)(6), the Court must "accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff." Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nevertheless, a plaintiff may not rely on mere labels or conclusions, "and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that even pro se litigants cannot rely on conclusory, unsubstantiated allegations to survive a 12(b)(6) motion). Rather, "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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (explaining that plausibility refers "to the scope of the allegations in a complaint," and that the allegations must be sufficient to nudge a plaintiff's claim(s) "across the line from conceivable to plausible"). The ultimate duty of the Court is to "determine 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).

ANALYSIS

I. The Dix Motion to Dismiss

A. Subject Matter Jurisdiction

Because it is a threshold issue, the Court first addresses Ms. Dix's invocation of Rule 12(b)(1), which suggests that Ms. Dix believes that this Court lacks subject matter jurisdiction over Plaintiff's claims. See United States v. Springer, 875 F.3d 968, 973 (10th Cir. 2017) ("Jurisdiction is a threshold question that a federal court must address before reaching the merits." (quotation omitted)). In her Motion, Ms. Dix sets forth the legal standard governing Rule 12(b)(1) motions, and contends that the Dix Motion to Dismiss presents a facial attack to the Court's subject matter jurisdiction. [Doc. 33 at 2]. Nevertheless, she does not expressly argue that this Court lacks subject matter jurisdiction over any of Plaintiff's claims. See [id.]. Indeed, statute of limitation defenses, absolute prosecutorial immunity, and qualified immunity are properly raised via Rule 12(b)(6) rather than Rule 12(b)(1). See McRoberts v. Rosas, No. 21-2470-DDC-TJJ, 2022 WL 4482481, at *1 n.2 (D. Kan. Sept. 27, 2022) (citations omitted). Upon a review of Ms. Dix's Motion, the Court does not find that any of her arguments attack the Court's subject matter jurisdiction.

The closest Ms. Dix comes...