Ross v. Pino

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DEANNA ROSS, et al., Plaintiff, v. ROBERT PINO, et al., Defendants.

Civil Action No. 1:20-cv-01292-CMA-SKC

United States District Court, D. Colorado

July 2, 2021

RECOMMENDATION RE: DEFENDANTS' MOTIONS TO DISMISS [#20 & #24]

S KATO CREWS UNITED STATES MAGISTRATE JUDGE

When L.P. (the child of Plaintiff Deanna Ross and Defendant Robert Pino) was eight years old, he was disciplined at school for making inappropriate comments to another student. [#9 at ¶¶10, 17.]^[1] At the time, L.P. said his comments were related to a video he'd seen on YouTube. [Id. at ¶18.]^[2] However, when he went to stay with Pino, a law enforcement officer with the Rio Grande Sheriff's Department, L.P. then said the inappropriate comments were based on Plaintiff Jason Ross's conduct. [Id. at ¶¶20-21.] Jason Ross is L.P.'s half-brother and was also a minor at the time. [Id. at ¶21.]

On May 8, 2021, Deanna Ross tried to pick L.P. up from school, but was told by Monte Vista Police Officers Michael Martinez^[3] and Ezekiel Sisneros that L.P. would not be released to her custody.^[4] [Id. at ¶29-30.] The following day, the Department of Social Services (DSS) interviewed L.P. [Id. at ¶22.] Based on the interview, DSS did not find a basis to change the parties' custody arrangement. [Id. at ¶25.] And, following an emergency hearing, the Rio Grande County district court also concluded the custody arrangement would remain intact, but ordered Jason Ross could not be alone with L.P., and ordered DSS to perform wellness checks. [Id. at ¶38.]

Later in the year, L.P. told his counselor he made up the story about Jason's conduct. [Id. at ¶40.] Thereafter, the Monte Vista Police Department (MVPD), in conjunction with the Rio Grande District Attorney's Office, conducted additional forensic interviews of L.P [Id. at ¶¶41-42.] Based on these interviews, the District Attorney charged Deanna Ross and her husband, Plaintiff Armando Ross, with felony witness tampering, intimidating a witness, and misdemeanor child abuse. [Id. at ¶¶43, 49-50, 52.] These charges were later dismissed. [Id. at ¶¶50, 51, 53.]

Plaintiffs initiated this lawsuit on May 7, 2020, asserting Pino and Defendant Joseph Lukow, an investigator for the District Attorney's Office, violated Plaintiffs' constitutional rights to due process and familial association. [#9 at ¶¶59-69, 70-84.] Defendants seek dismissal of Plaintiffs' case in its entirety. [#20 & #24.] The Court has considered the Motions, related briefing, and the relevant law. No. hearing is necessary. For the following reasons, the Court RECOMMENDS both Motions be GRANTED.

LEGAL ANALYSIS

A. Standards of Review

Both Defendants argue this case should be dismissed for failure to state a claim upon which relief can be granted. Defendant Lukow further argues he is entitled to qualified immunity.

1. Fed.R.Civ.P. 12(b)(6)

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” See 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, 595 F.3d v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (internal citations omitted). The Court is not, however, “bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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.” Id. at 678 (internal quotation marks omitted).

The Twombly/Iqbal pleading standard requires courts take a two-prong approach to evaluating the sufficiency of a complaint. Id. at 678-79. The first prong requires the court to identify which allegations “are not entitled to the assumption of truth” because, for example, they state legal conclusions or merely recite the elements of a claim. Id. at 678. The second prong requires the court to assume the truth of the well-pleaded factual allegations “and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. “Accordingly, in examining a complaint under Rule 12(b)(6), [courts] will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). In other words, the court strips the complaint bare of the deficient allegations and determines whether the remainder plausibly states a claim for relief. The standard is a liberal one, however, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely.” Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009).

2. Qualified Immunity

Qualified immunity shields “government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation omitted). Qualified immunity is “immunity from suit rather than a mere defense to liability [and] it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Whether defendants are entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007).

In resolving a motion to dismiss based on qualified immunity, the court must consider two things: (1) “whether the facts that a plaintiff has alleged . . . make out a violation of a constitutional right, ” and (2) “whether the right at issue was clearly established at the time of defendant's alleged misconduct.” Pearson, 555 U.S. at 232. The plaintiff bears the burden of alleging facts and law to establish the inference that the defendant violated a clearly established federal constitutional or statutory right. Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir. 1994). If the plaintiff fails to satisfy either prong, the defendant is entitled to qualified immunity. Pearson, 555 U.S. at 236. The court has the discretion to consider these prongs in any order. Leverington v. City of Colorado Springs, 643 F.3d 719, 732 (10th Cir. 2011).

B. Malicious Abuse of Process

Plaintiffs contend Defendants violated the Fourteenth Amendment when-in order to give Pino an advantage in the custody proceedings-they brought unfounded criminal charges against Plaintiffs. [#9 at ¶¶61-62.] They title this claim for relief “Malicious Abuse of Process.” [#9 at ¶¶59-69.] In their Response to Lukow's Motion, Plaintiffs clarify they are asserting constitutional claims of malicious prosecution^[5]and abuse of process, and argue they have sufficiently pleaded the elements under Colorado law. [#36 at pp.3-8.]

Although “courts have used the common law of torts as a ‘starting point' for determining the contours of claims of constitutional violations, ” the primary inquiry in any § 1983 action, “regardless of the analogous common law tort, is whether the plaintiff has alleged an actionable constitutional violation.” Becker v. Kroll, 494 F.3d 904, 913 (10th Cir. 2007) (citing Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir.2004)).

The Tenth Circuit has repeatedly recognized 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.'” Id. at 914 (quoting Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996)). Plaintiffs acknowledge they were not arrested, and therefore, cannot assert claims under the Fourth Amendment; but, citing Becker v. Kroll, they assert their claims are viable under the Fourteenth Amendment due process protections.^[6] [#36 at p.4.] Plaintiffs have not specified whether their claims are based on substantive or procedural due process violations; in conclusory fashion, they simply reiterate their position Defendants used the criminal and judicial process in an improper manner. Under either analysis, dismissal is warranted.

In Becker, the plaintiff doctor was criminally charged with fraudulent billing, but was never arrested and the charges against her were ultimately dismissed. 494 F.3d at 909. The plaintiff filed suit asserting, inter alia a claim for malicious prosecution under the Fourth and Fourteenth Amendment. Id. In its analysis, the Tenth Circuit first noted Supreme Court precedent stating, “substantive due process may not furnish the constitutional peg on which to hang” a claim of malicious prosecution. Id. at 918 (quoting Albright v. Oliver, 510 U.S. 266, 270 n. 4 (1994)). The Circuit Court went on to conclude “the unavoidable construction of Albright is that no § 1983 claim will arise from filing criminal charges without probable cause under the substantive due process protections of the Fourteenth Amendment.” Id. (emphasis added). Rather, plaintiffs who have been charged without due process must proceed under the explicit textual protections of the Fourth Amendment. Id. at 918-19 (“[T]he Fourth Amendment protects a person's liberty interests under the constitution by ensuring that any arrest or physical incarceration attendant to a criminal prosecution is reasonable.”). As in Becker, Plaintiffs' substantive due process claims arise from the filing of criminal charges without due process, and therefore, they...