Torrez v. El Paso County Sheriff's Department

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 20-cv-02478-RMR-KLM

JOSEPH TORREZ,

Plaintiff,

v.

EL PASO COUNTY SHERIFF’S DEPARTMENT,

BOARD OF COUNTY COMMISSIONERS FOR THE COUNTY OF EL PASO,

GRACE EASTHAM, El Paso County Jail Technician, and

DEPUTIES JOHN DOE 1-4,

Defendants.

_____________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

_____________________________________________________________________

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on Defendants’ Motion to Dismiss Pursuant to

Fed. R. Civ. P. 12(b)(1) and (6) [#21]1 (the “Motion”). Plaintiff, who proceeds as a pro se

litigant,2 filed a Response [#23] in opposition to the Motion [#21], Defendants filed a Reply

[#24]. The Motion [#21] has been referred to the undersigned pursuant to 28 U.S.C. §

636(b)(1) and D.C.COLO.LCivR 72.1. See [#22]. The Court has reviewed the Motion,

the Response, the Reply, the entire case file, and the applicable law, and is sufficiently

1 “[#21]” is an example of the convention the Court uses to identify the docket number

assigned to a specific paper by the Court’s case management and electronic case filing system

(CM/ECF). This convention is used throughout this Recommendation.

2 The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner,

404 U.S. 519, 520-521 (1972). In doing so, the Court should not be the pro se litigant’s advocate,

nor should the Court “supply additional factual allegations to round out a plaintiff’s complaint or

construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175

(10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro

se litigant must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17

F.3d 1276, 1277 (10th Cir. 1994).

advised in the premises. For the reasons set forth below, the Court respectfully

RECOMMENDS that the Motion [#21] be DENIED in part and GRANTED in part.

I. Background3

On July 2, 2015, Plaintiff was sentenced to two years in the El Paso County Jail,

to run concurrently with all current and former time, in El Paso County case 15CR1210.

Compl. [#4] ¶ 5. Plaintiff was in custody at the time of his sentencing, had already been

in custody prior to sentencing, and remained in custody until his sentence in case

15CR1210 expired. Id. ¶ 6. There was no language in the sentencing order stating that

Plaintiff was to begin serving the sentence in 15CR1210 after his release on his other

concurrent sentences. Id. ¶ 7.

On April 14, 2020, Plaintiff was arrested and taken into custody by deputies of the

El Paso County Sheriff’s Department and transported to the El Paso County Jail. Id. ¶ 2.

Plaintiff was advised that he was taken into custody in connection with El Paso County

case 15CR1210 to serve the sentence in that case, but he alleges that he had already

served that sentence in full. Id. ¶¶ 3-4. When he was arrested, he informed the Doe

Defendants that the warrant was invalid and that they were falsely arresting him because

the sentence for which he was being arrested had already been served. Id. ¶ 8. The Doe

Defendants ignored his statements and arrested him anyway, taking him to the El Paso

County Jail and placing him in the custody of the El Paso County Sheriff’s Department.

Id. ¶ 9.

3 For the purposes of resolving the Motion [#21], the Court accepts as true all well-pled,

as opposed to conclusory, allegations made in Plaintiff’s Complaint [#1]. See Shero v. City of

Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)).

After he was booked, he told several deputies and Defendant Grace Eastham

(“Eastham”), an El Paso County Jail Technician, that he had been wrongfully arrested

and had already served his sentence. Id. ¶ 10. He contacted Defendant Eastham several

times, and she told him that she would not look into the issue and that he had to petition

the courts himself. Id. ¶ 11. After repeated inquiries by Plaintiff and submission of the

sentencing orders (via outside help) in 15CR1210 and another of Plaintiff’s criminal

cases, 2015CR3729, Defendant Eastham said that Plaintiff’s sentence in 15CR1210 was

supposed to run consecutively to his other cases. Id. ¶ 12. Plaintiff wrote several kite

requests and several grievances regarding the issue but was denied and ignored. Id. ¶

13. Eventually, with further outside help, Plaintiff was able to establish that he had been

wrongfully confined. Id. ¶ 14. On May 11, 2020, he was released after having served

twenty-four days after a paralegal helped him correspond with the Clerk of Court for El

Paso County, since Defendant Eastham would not. Id. Robin Parker, a Clerk of Court

for El Paso County, confirmed that the sentence was concurrent and had already been

served. Id.

As a result of these events, Plaintiff brings five claims: (1) Claim One: “false arrest

and false imprisonment in violation of the Fourth Amendment and excessive confinement

in violation of the Eighth Amendment,” as well as a due process claim under the

Fourteenth Amendment,4 against Defendant Eastham and the Doe Defendants; (2) Claim

Two: violation of due process in violation of the Fourteenth Amendment,” against the El

Paso Sheriff’s Department; (3) Claim Three: “respondeat superior under Colorado state

4 Although not part of the heading under Claim One, Plaintiff mentions the Fourteenth

Amendment in the body of this claim, and therefore, liberally reading the Complaint [#1] as the

Court must, see Haines, 404 U.S. at 520-521, the Court addresses a Fourteenth Amendment

claim against here as well. Compl. [#1] at 8 ¶ 52.

law and municipal liability under Monell,” against the Board of County Commissioners of

for the County of El Paso and the El Paso County Sheriff’s Department; (4) Claim Four:

“infliction of emotional distress,” asserted against Defendant Eastham and the Doe

Defendants, and (5) Claim Five: “negligence: negligent hiring, negligent retention,

negligent supervision, negligent infliction of emotional distress,” against the Board of

County Commissioners for the County of El Paso and the El Paso County Sheriff’s

Department. Id. ¶¶ 15-111. Plaintiff seeks damages and declaratory/injunctive relief. Id.

at 15. In the present Motion [#21], Defendants (except for the Doe Defendants, who are

not parties to the Motion [#21]) seek dismissal of all claims asserted against them.

II. Standard of Review

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

Rule 12(b)(1) concerns whether the Court has jurisdiction to properly hear the case

before it. Because “federal courts are courts of limited jurisdiction,” the Court must have

a statutory basis to exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th

Cir. 2002); see Fed. R. Civ. P. 12(b)(1). Statutes conferring subject-matter jurisdiction on

federal courts are to be strictly construed. F & S Const. Co. v. Jensen, 337 F.2d 160, 161

(10th Cir. 1964). “The burden of establishing subject-matter jurisdiction is on the party

asserting jurisdiction.” Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 377 (1994)).

A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: a facial attack

or a factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When

reviewing a facial attack on a complaint, the Court accepts the allegations of the complaint

as true. Id. By contrast, with a factual attack, the moving party challenges the facts upon

which subject-matter jurisdiction depends. Id. at 1003. When reviewing a factual attack

on a complaint, the Court “may not presume the truthfulness of the complaint’s factual

allegations.” Id. at 1003. The Court therefore must make its own findings of fact. Id. In

order to make its findings regarding disputed jurisdictional facts, the Court “has wide

discretion to allow affidavits, other documents, and a limited evidentiary hearing.” Id.

(citing Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler

v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987)).

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

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the

sufficiency of the allegations within the four corners of the complaint after taking those

allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed. R.

Civ. P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim

upon which relief can be granted”). To withstand a motion to dismiss pursuant to Rule

12(b)(6), “a complaint must contain enough allegations of fact ‘to state a claim to relief

that is plausible on its face.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of

Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient

facts, taken as true, to provide ‘plausible grounds’ that discovery will reveal evidence to

support the plaintiff’s allegations” (quoting Twombly, 550 U.S. at 570)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). 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 a complaint suffice if it tenders naked assertions devoid of further factual

enhancement.” Id. (internal quotation marks omitted).

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for

more than a sheer possibility that defendant has acted unlawfully.” Iqbal, 556 U.S. at 678

(citation omitted). As the Tenth Circuit has explained, “the mere metaphysical possibility

that [the] plaintiff could prove some set of facts in support of the pleaded claims is

insufficient; the complaint must give the court reason to believe that [the] plaintiff has a

reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk,

LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). However, “[t]he court’s function

on a 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.” Sutton v. Utah State Sch. for the Deaf & Blind,

173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted).

III. Analysis

The Court has been unable to find a case with similar allegations, where a

convicted prisoner served his time, was released, and then was taken back into custody

under the mistaken belief that he had been released early in error. Nevertheless, the

Court agrees with Defendants that this case appears to fall into the “overdetention”

category of cases, where a convicted prisoner’s sentence (or the holding of a pretrial

detainee) is alleged to be prolonged past a date when the person was legally supposed

to be released. In short, “overdetention” generally means that “the plaintiff has been

imprisoned by the defendant for longer than legally authorized, whether because the

plaintiff’s incarcerative sentence has expired or otherwise.” Dodds v. Richardson, 614

F.3d 1185, 1192 (10th Cir. 2010).

A. Claim One

Here, the Court examines the constitutional claims under Claim One to the extent

asserted against Defendant Eastham.

1. Monetary Relief

Defendant Eastham asserts that she is entitled to qualified immunity on Plaintiff’s

claims to the extent that Plaintiff seeks monetary relief from her. Qualified immunity, in

certain circumstances, protects government officials from litigation when they are sued in

their individual capacities. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 814-18 (1982).

A government official is entitled to qualified immunity from liability for civil damages in her

individual capacity when her allegedly unlawful conduct did not violate any of the plaintiff’s

statutory or constitutional rights that (1) were “clearly established” at the time of the

conduct, and (2) would have been known to a reasonable person in the official’s position.

Id. at 818 (stating that “government officials performing discretionary functions generally

are shielded 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”); see also Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that although

qualified immunity determination involves a two-part inquiry, if the plaintiff fails either

inquiry reviewed in any order, no further analysis need be undertaken and qualified

immunity is appropriate). The Supreme Court has stated that “[f]or executive officials in

general . . . our cases make plain that qualified immunity represents the norm.” Harlow,

457 U.S. at 807. Thus, a government official is entitled to qualified immunity in “[a]ll but

the most exceptional cases.” Harris v. Bd. of Educ. of Atlanta, 105 F.3d 591, 595 (11th

Cir. 1997).

a. Fourth Amendment

Defendant Eastham argues that this claim must be dismissed as a matter of law,

because an overdetention claim cannot be based on the Fourth Amendment. Reply [#24]

at 2 (citing Sloan v. Pugh, No. 05-cv-00527-REB-CBS, 2005 WL 2464678, at *1 n.2 (D.

Colo. Oct. 4, 2005)).

In Sloan v. Pugh, the Court noted that the plaintiff “cites to no case, and I have

found none, holding that the Fourth Amendment creates a constitutional right under

circumstances similar to those implicated in this case.” 2005 WL 2464678, at *1 n.2

(emphasis added). That case involved allegations that the plaintiff was incarcerated “for

an additional 127 days past the date on which his sentence actually expired.” Id. at *1.

In Farrell v. Colorado, No. 14-cv-01882-MSK-CBS, 2015 13730678, at *3 (D. Colo. Nov.

24, 2015), where the plaintiff alleged that “his sentence discharge date was wrongfully

extended by 7 days because he was not given all of the earned time credit for which he

was eligible following the expungement of a disciplinary conviction,” the Court similarly

held that the Fourth Amendment was inapplicable. Unlike the present case, however,

neither Sloan nor Farrell concerned a plaintiff who was incarcerated, released, and then

arrested again based on the mistaken belief that he had been accidentally released

prematurely. Both of those cases concerned the failure to release a prisoner who had

allegedly successfully served his sentence and were kept incarcerated for additional time.

The Court is therefore not convinced by Sloan or Farrell that the Fourth Amendment’s

prohibition on false arrest may never be implicated in an overdetention case.

However, even assuming the applicability of the Fourth Amendment, Plaintiff

alleges nothing in the Complaint [#1] to insinuate that Defendant Eastham arrested

Plaintiff herself or otherwise caused his arrest, directly or indirectly. See Reply [#24] at 2.

In his Response [#23], Plaintiff confirms: “Indeed, [Plaintiff] does not allege that

[Defendant] Eastham [caused Plaintiff to be arrested or transported to the jail] because

she did not; the unidentified Doe officers caused him to be arrested and transported . . .

.”5 Response [#23] at 2.

In Moya v. Garcia, 895 F.3d 1229, 1231 (10th Cir. 2018), the plaintiffs “were

arrested based on outstanding warrants and detained in a county jail for 30 days or more

prior to their arraignments,” which violated the 15-day requirement of New Mexico law,

and the plaintiffs then brought suit asserting claims of overdetention. The defendants

were the sheriff and the warden of the jail, but the court held that they did not cause the

arraignment delays because “the arraignments could not be scheduled by anyone

working for the sheriff or wardens; scheduling of the arraignments lay solely with the state

trial court.” Moya, 895 F.3d at 1231. Even though the plaintiffs argued that the

defendants “could have mitigated the risk of overdetention by keeping track of whether

detainees had been timely arraigned, requesting arraignments for those who had been

overdetained, or bringing detainees to court prior to a scheduled arraignment,” the court

held that this did not change the fact that “the arraignments could only be scheduled by

5 In his Response [#23], Plaintiff then immediately appears to contradict this statement,

saying that the Doe Defendants took this action “presumably after having been directed to do so

by Defendant Eastham since part of her function as a corrections technician in her position is to

verify all sentencing orders from the court and coordinate with arresting officers before taking a

person into custody.” Response [#23] at 2. However, Plaintiff cannot “effectively amend [his]

Complaint by alleging new facts in [his] response to a motion to dismiss.” In re Qwest Commc’ns

Int’l, Inc., 396 F. Supp. 2d 1178, 1203 (D. Colo. 2004).

the court itself,” and there was no indication that “the state trial court would have

conducted the arraignments and ordered release any earlier than it did.” Id. at 1234 (citing

Estate of Brooks ex rel. Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999)

(holding that the county did not cause the overdetention, reasoning that the county could

only ask for federal help and that the county lacked the “ability itself to bring the prisoner

before the appropriate judicial officer”)).

Although the circumstances of this case differ somewhat from Moya, the Court

finds that Moya’s general holding is equally applicable here, i.e., that without adequate

allegations that the defendant caused the overdetention, no claim is stated. Here, the

Court finds that, even assuming the propriety of a Fourth Amendment claim in the

overdetention context, Plaintiff has failed to state a claim here because he has not

sufficiently alleged that Defendant Eastham caused the arrest resulting in his

overdetention. Thus, she is entitled to qualified immunity.

Accordingly, the Court recommends that Plaintiff’s Fourth Amendment claim

against Defendant Eastham in her individual capacity for monetary damages be

dismissed without prejudice. See Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th

Cir. 1990) (stating that prejudice should not attach to a dismissal where a plaintiff has

made allegations “which, upon further investigation and development, could raise

substantial issues”).

b. Eighth Amendment

“[I]mprisonment beyond one’s term can constitute cruel and usual punishment for

purposes of the Eighth Amendment.” Waynewood v. Nelson, No. 15-cv-00946-MEH,

2016 WL 54122, at *1 (D. Colo. Jan. 5, 2016) (citing Mitchell v. N.M. Dep’t of Corrs., 996

F.2d 311, 1993 WL 191810, at *3 (10th Cir. June 1, 1993) (unpublished table opinion)).

Stating such a claim under the Eighth Amendment requires a plaintiff to adequately allege

that the defendant “acted with deliberate indifference to whether the plaintiff suffered an

unjustified deprivation of his liberty.” Waynewood, 2016 WL 54122, at *1. This requires

allegations supporting three elements: (1) the defendant knew of the plaintiff’s problem

and therefore knew that unwarranted punishment may currently or in the future be

inflicted; (2) the defendant “failed to act or took only ineffectual action under

circumstances indicating that his or her response to the problem was a product of

deliberate indifference to the prisoner’s plight”; and (3) “a causal connection between the

official’s response to the problem and the infliction of the unjustified detention.” Id. at *2

(quoting Sample v. Dierks, 885 F.2d 1099, 1108-10 (3d Cir. 1989)).

Factually, the most similar case the Court has found to the allegations of this case

is Routt v. Howry, No. CIV-18-127-D, 2019 WL 6131438, at *3 (W.D. Okla. Nov. 19, 2019),

where the plaintiff alleged that “he noticed on his time sheet that he was not being credited

for time served,” that he notified the defendants, but that they “refused to correct the error,

. . . because the credit for time served Plaintiff claimed was not reflected in the pertinent

judgment and sentence.” Routt, 2019 WL 6131438, at *3. The plaintiff further alleged

that he “engaged the grievance process,” but he did “not allege he produced proper

documentation or credible evidence in support of his assertions.” Id. The plaintiff then

alleged that “once the judgment and sentence were corrected, he received a copy of the

documents on or about March 17, 2016,” and “[o]n March 28, Plaintiff was awarded credits

for time served and immediately discharged.” Id.

The plaintiff in Routt claimed that the defendants “violated his Eighth and

Fourteenth Amendment rights by incarcerating him beyond the expiration of his

sentence.” Id. at *1. The defendants argued that “they had no constitutional obligation

to ‘undertake an investigation that includes searching court records, reviewing court

transcripts, and questioning judges and criminal defense attorneys regarding the terms

of the plea agreement, when a prisoner claims [his sentence is being incorrectly

administered].’” Routt, 2019 WL 6131438, at *2.

The court held that “[i]t would not have been reasonable for Defendants to believe

that by following a facially valid judgment and sentence they were violating Plaintiff’s

constitutional rights.” Id. at *3 (citing Alston v. Read, 663 F.3d 1094 (9th Cir. 2011) (“State

corrections officials did not have clearly established duty to seek out original court records

in response to state prisoner’s unsupported assertion that he was being overdetained,

and thus, state officials were entitled to qualified immunity from liability for their failure to

do so, in prisoner’s § 1983 claim alleging overdetention in violation of due process and

the Eighth Amendment.”)). The court noted that “the Oklahoma Court of Criminal Appeals

interpreted Oklahoma law as placing the decision whether to award presentence jail

credits within the discretion of the sentencing court,” and that the plaintiff merely alleged

that the defendants “complied with the documentation they originally received from the

court: a judgment and sentence that were silent as to the amount of credit for time served.”

Id. The court emphasized that the defendants “did act once they were properly notified

of the mistake,” i.e., “[o]nce Defendants received an amended judgment and sentence,

serving as documentation supporting Plaintiff's allegations, Plaintiff was discharged.” Id.

The plaintiff argued the defendants could have corrected the error if they had called the

district attorney, but the court observed that, “[e]ven if Defendants had called, however,

Plaintiff would have had to undergo the exact process that resulted in the amended

judgment and sentence. Defendants would have had no authority to alter the original

judgment based on any information they might have obtained from the District Attorney,”

which “bolster[ed] Defendants’ argument that they lacked credible evidence, and hence,

no constitutional violation ensued.” Id. at *3 n.5.

Here, Plaintiff’s unsupported assertions to Defendant Eastham, without more, are

insufficient to demonstrate that she “knew” of Plaintiff’s problem and “knew” that Plaintiff

might be enduring unwarranted punishment in the form of overdetention. Plaintiff cites

the sentencing mittimi in cases 2015CR1210 and 2015CR3729, both of which he

incorporates in full in his Complaint, see [#1] at 4, 17, 27, as documentation which was

eventually provided to Defendant Eastham. The mittimus from 2015CR3729 states that

Plaintiff’s sentence in that case was to be “consecutive” to the sentences in his other

criminal cases, including 2015CR1210. Defendant Eastham allegedly interpreted the

mittimi as showing that Plaintiff could not complete his two-year sentence in 2015CR1210

until he finished serving his sentence in 15CR3729, given that the mittimus from

2015CR3729 states that the sentences were to be consecutive. The mittimus from

2015CR1210, which was issued before the mittimus from 2015CR3729, does not mention

15CR3729, and thus there is no mention of whether the sentences in the two cases were

concurrent or consecutive in that document.

Here, as in Routt, the mittimi appear to be facially valid judgments and sentences.

When the issue was brought to Defendant Eastham’s attention that there could be an

inaccuracy in the documentation or in her interpretation of the documentation, she

directed Plaintiff to the courts for further help and corresponded with a paralegal working

on Plaintiff’s behalf to address the problem. Even assuming that Defendant Eastham’s

interpretation of the mittimus was wrong, there is no indication that she was deliberately

indifferent to Plaintiff’s plight, that she took no action with respect to his problem, or that

she took such ineffectual action as to be deliberately indifferent to Plaintiff’s constitutional

rights, at least for the first part of his re-incarceration.

However, the thrust of Plaintiff’s claim under the Eighth Amendment (as well as

under the Fourteenth Amendment, which the Court discusses in more detail below), is

that he was incarcerated despite having completed his sentence and that Defendants,

and here specifically Defendant Grace Eastham, knew this. As best the Court can tell

from the allegations in the Complaint [#1] and the argument offered in the briefs,

Defendant Eastham had all of the necessary information before her no later than April 30,

2020, from which she could determine that Plaintiff should be released. Compl. [#1] at

19-25. There is no adequate explanation as to why Plaintiff was not released until May

11. There may be more to the story than what is currently before the Court for

consideration, such as whether a court order was actually required here and, if so, when

that court order was issued, and discovery may bring to light additional information which

could affect the viability of this claim. Regardless, the Court finds that the allegations in

the Complaint [#1] are sufficient at this early stage of the proceedings to state a claim for

deliberate indifference under the Eighth Amendment for at least a portion of the time

Plaintiff was held at the jail.

Thus, the Court turns to the second requirement of the qualified immunity analysis.

In Ortiz v. New Mexico, No. CIV 18-0028 JB/LF, 2021 WL 3115577, at *70-79 (D.N.M.

July 22, 2021), the Court engaged in an extremely thorough examination of precedent

from the Tenth Circuit Court of Appeals regarding when a right is clearly established for

purposes of qualified immunity, ultimately finding that apparent contradictions in opinions

issued by the Tenth Circuit meant that its “signals are not clear” concerning what exactly

constitutes a “clearly established” right. Sifting through these mixed signals, the Ortiz

court concluded based on its comprehensive review that a government official “is entitled

to qualified immunity unless a plaintiff can demonstrate: (i) that the defendant’s actions

violated his or her constitutional or statutory rights; and (ii) that the right was clearly

established either (a) by a factually similar Supreme Court or Tenth Circuit case on point,

or, in rare cases, by general constitutional principles, at the time of the alleged

misconduct, or (b) because the conduct was particularly egregious such that any

reasonable officer should have realized it was unlawful . . . .” Ortiz, 2021 WL 3115577,

at *79 (internal quotation marks and citations omitted).

Here, it is clear that there are “general constitutional principles that a prisoner has

a due-process liberty interest in credit for jail time served . . . and a right under the Eighth

Amendment’s prohibition on cruel and unusual punishment to be released when his

sentence ends.” See Routt v. Howry, 835 F. App’x 379, 382-83 (10th Cir. 2020) (citations

omitted). At a minimum, even assuming that Defendant Eastham complied with her duty

to investigate Plaintiff’s assertions that there had been an error in the calculation of his

prison sentence, once Defendant Eastham allegedly had all of the necessary information

before her that Plaintiff had completed his sentence and should no longer be held, then

Plaintiff should have been released as soon as possible. Here, there are no currently

identified extenuating circumstances which would make application of these general

constitutional principles inappropriate.

Accordingly, the Court recommends that the Motion [#21] be denied to the extent

Defendant Eastham seeks qualified immunity on Plaintiff’s Eighth Amendment claim.

c. Fourteenth Amendment

The Due Process Clause provides: “No State shall . . . deprive any person of life,

liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “An alleged

violation of the procedural due process required by this clause prompts a two-step inquiry:

(1) whether the plaintiff has shown the deprivation of an interest in ‘life, liberty, or property’

and (2) whether the procedures followed by the government in depriving the plaintiff of

that interest comported with ‘due process of law.’” Elliott v. Martinez, 675 F.3d 1241,

1244 (10th Cir. 2012). “A protected interest in liberty or property may have its source in

either federal or state law.” Id. “[A] state-created interest is not protected by the

procedural component of the Due Process Clause unless the interest is an entitlement—

that is, unless the asserted right to property or liberty is mandated by state law when

specified substantive predicates exist.” Id. By way of example provided by the Tenth

Circuit Court of Appeals in Elliott v. Martinez:

[I]f state law provides that a prison inmate is entitled to be released on

parole when the inmate has not violated prison regulations for 10 years,

then that interest in being released is a protected liberty interest: release is

mandated when the substantive predicate (no violations for 10 years) is

satisfied. The Due Process Clause would then require the state to provide

a prisoner adequate procedures—say, notice and a hearing before prison

officials—before it could hold him beyond 10 years on the ground that he

had violated a prison regulation. But the liberty interest in being released

on parole would not qualify for due-process protection if there were no

substantive predicates that mandated release, as when there is no set of

facts which, if shown, mandate a decision favorable to the inmate.

Id. (internal footnote, citation, quotation marks, and alterations omitted).

Here, Plaintiff essentially asserts that his protected interest is not serving additional

time incarcerated on a sentence which he has completed, a point which Defendants do

not contest. See Motion [#21] at 6-7. However, in the context of overdetention, in order

“to establish a violation of due process, plaintiff must show that defendants were guilty of

more than mere negligence.” Sloan, 2005 WL 2464678, at *1 (citing Daniels v. Williams,

474 U.S. 327, 334 (1986)). Defendants assert that Plaintiff has not alleged more than

mere negligence here. Motion [#21] at 7.

For the same reasons stated above in connection with Plaintiff’s Eighth

Amendment claim, the Court finds that Plaintiff’s allegations are adequate to state a

Fourteenth Amendment claim. To reiterate, based on the Complaint [#1], it appears that

Defendant Eastham had all of the necessary information before her at least as of April

30, and yet Plaintiff was not released until May 11. Under these circumstances, it could

be inferred that Defendant Eastham violated Plaintiff’s due process rights by failing to

release him. Thus, the Court finds that Plaintiff has stated a claim against Defendant

Eastham under the Fourteenth Amendment.

In addition, for the same reasons stated above, the Court finds that the law was

clearly established that Plaintiff had the right to release or, at a minimum, to a due process

hearing once it become clear to Defendant Eastham that Plaintiff had completed his

sentence.

Accordingly, the Court recommends that the Motion [#21] be denied to the extent

Defendant Eastham seeks qualified immunity on Plaintiff’s Fourteenth Amendment claim.

2. Declaratory/Injunctive Relief

For the same reasons stated above in Section III.A.1.a., the Court finds that

Plaintiff has failed to state a claim against Defendant Eastham under the Fourth

Amendment. Accordingly, the Court recommends that the Motion [#21] be granted to

the extent Plaintiff seeks declaratory/injunctive relief with respect to his Fourth

Amendment claim under Claim One.

In addition, for the same reasons stated above, the Court finds that Plaintiff has

provided adequate allegations to state claims under the Eighth Amendment and the

Fourteenth Amendment against Defendant Eastham. According, the Court recommends

that the Motion [#21] be denied to the extent Defendant Eastham seeks dismissal of

these aspects of Plaintiff’s Claim One.

B. Claims Two and Three

Under the heading “Claim Two,” Plaintiff asserts a Fourteenth Amendment claim

against Defendant El Paso County Sheriff’s Department. Compl. [#1] at 8-10. Under the

heading “Claim Three,” Plaintiff asserts a Monell claim against the Board of County

Commissioners for the County of El Paso and the El Paso County Sheriff’s Department.

Id. at 10-12. Although not presented as such, Plaintiff’s Fourteenth Amendment claim

under Claim Two is essentially a Monell claim, i.e., seeking liability of a municipal entity,

the El Paso Sheriff’s Department.

To assert a municipal liability claim, Plaintiff must allege that: (1) his constitutional

rights were violated; and (2) a municipal policy or custom was the moving force behind

the constitutional deprivation(s). Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404

(1997). Here, the Court finds that Plaintiff has failed to provide specific allegations

demonstrating the existence of a custom or policy to support the second element of his

claims. See, e.g., Carbajal v. St. Anthony Cent. Hosp., No. 12-cv-02257-REB-KLM, 2013

WL 4799654, at *3 (D. Colo. Sept. 6, 2013).

In the absence of an official policy, official capacity claims can only survive if the

challenged practice is “so permanent and well settled as to constitute a ‘custom or usage’

with the force of law.” Lankford v. City of Hobart, 73 F.3d 283, 286 (10th Cir. 1996)

(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 168 (1970)). To prove a custom,

therefore, a plaintiff must allege “[t]he existence of a continuing, persistent and

widespread practice of unconstitutional misconduct.” Gates v. Unified Sch. Dist. No. 449

of Leavenworth Cty., Kan., 996 F.2d 1035, 1041 (10th Cir. 1993). A single incident of

unconstitutional conduct is insufficient to plausibly suggest the existence of a custom or

widespread practice. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-824 (1985);

Starrett v. Wadley, 876 F.2d 808, 820 (10th Cir.1989); Murphy v. Bitsoih, 320 F. Supp. 2d

1174, 1196-97 (D.N.M. 2004). Because the Complaint [#1] does not provide allegations

suggesting that anyone other than Plaintiff himself was ever subjected to the allegedly

unconstitutional actions by Defendants, Plaintiff has not sufficiently alleged a viable claim

based on the existence of a custom or practice. See, e.g., Johnson v. Pelle, No. 19-cv-

02830-RM-KLM, 2020 WL 6119529, at *11 (D. Colo. Aug. 24, 2020).

In the absence of an adequately alleged custom or practice, Plaintiff must allege

the existence of an official policy. See Tuttle, 471 U.S. at 823-24 (“Proof of a single

incident of unconstitutional activity is not sufficient to impose liability [against a

municipality], unless proof of the incident includes proof that it was caused by an existing,

unconstitutional municipal policy, which policy can be attributed to a municipal

policymaker.”). “In order to warrant liability, a municipal policy must be a policy statement,

ordinance, regulation, or decision officially adopted and promulgated by [the

municipality's] officers.” Lankford, 73 F.3d at 286 (citation and internal quotation marks

omitted). Here, Plaintiff has not provided allegations to plausibly suggest that either the

Board of County Commissioners for the County of El Paso or the El Paso County Sheriff’s

Department has adopted or promulgated any such policy statement, ordinance,

regulation, or decision regarding the circumstances presented here. Similarly, Plaintiff

has not alleged any facts (as opposed to mere conclusions) to plausibly suggest that an

official with final policymaking authority over this particular area of concern adopted or

promulgated such a policy. See Moss v. Kopp, 559 F.3d 1155, 1169 (10th Cir. 2009);

Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996). Therefore, the Court finds that

Plaintiff fails to sufficiently allege the second prong of the municipal liability test.

Accordingly, the Court recommends that the Motion [#21] be granted to the extent

that Plaintiff’s Claim Two and Claim Three (to the extent asserted under Monell) be

dismissed without prejudice. See Hicks v. Anderson, No. 11-cv-00422-WJM-KMT,

2012 WL 1415338, at *7 (D. Colo. Jan. 23, 2012); see also Brown, 520 U.S. at 404;

Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006).

C. State Law Claims

Defendants seek dismissal of Plaintiff’s state law claims under Claims Three, Four,

and Five for lack of subject matter jurisdiction, arguing that Plaintiff failed to adequately

comply with the notice requirements of the Colorado Government Immunity Act (“CGIA”).

Motion [#21] at 12-14. The CGIA’s notice provision, Colo. Rev. Stat. § 24-10-109(1),

provides:

Any person claiming to have suffered an injury by a public entity or by an

employee thereof while in the course of such employment, whether or not

by a willful and wanton act or omission, shall file a written notice as provided

in this section within one hundred eighty-two days after the date of the

discovery of the injury, regardless of whether the person then knew all of

the elements of the claim or of a cause of action for such injury. Compliance

with the provisions of this section shall be a jurisdictional prerequisite to any

action brought under the provisions of this article, and failure of compliance

shall forever bar any such action.

Failure to comply with the notice requirement is “an absolute bar to suit.” Gallagher v.

Bd. of Trs. for Univ. of N. Colo., 54 P.3d 386, 393 (Colo. 2002). Strict compliance with

this part of the statute is not required, however. Finnie v. Jefferson Cnty. Sch. Dist. R-1,

79 P.3d 1253, 1257 (Colo. 2003). Rather, substantial compliance is adequate, meaning

that a plaintiff must simply show that the CGIA notice was “timely, in writing, and

evidence[d] a good faith effort to include each item of information set out in” Colo. Rev.

Stat. § 21–10–109, i.e., the claimant’s and the claimant’s attorney’s name and address,

a “concise statement of the factual basis of the claim, including the date, time, place, and

circumstances of the act, omission, or event complained of,” the name and address of

any public employee involved, a statement of the nature and extent of the injury suffered,

and a statement of the monetary damages requested. Katz v. Aurora, 85 F. Supp. 2d

1012, 1031-32 (D. Colo. 2000).

Plaintiff attaches a copy of his CGIA notice to his Complaint. See Ex. C [#1] at 26.

Dated May 22, 2020, the letter was sent to the El Paso County Attorney’s Office, is titled

“Notice of Claim-Intent to Sue,” and says:

Please take notice that the undersigned hereby provides formal notice that

he is an aggrieved party who intends to state claims against certain

agencies, agents and/or employees of the municipality you represent, who

violated his constitutional and other state rights while acting under color of

state law.

The undersigned intends to state claims against the Board of County

Commissioners for the County of El Paso, the El Paso County Sheriff’s

Office, El Paso County Jail Technician Grace Eastham, and other

defendants of these county agencies as they become revealed in relation

to the alleged constitutional violations which will be complained of in court.

This action arises as a result of actions by these agents/agencies which

violated the undersigned’s constitutional rights to due process, the right to

be free from excessive confinement, false imprisonment, and cruel and

unusual punishment. Corresponding state claims include infliction of

emotional distress, lost wages, and loss of consortium. The defendants,

through the unlawful and excessive confinement of the undersigned for a

case he had already completed a sentence for, have proximately caused

injuries to the undersigned, and he is entitled to redress pursuant to 42

U.S.C. § 1983, 28 U.S.C. § 1367, and other applicable state laws.

The undersigned shall be filing civil action in the United States District Court

for the District of Colorado, for declaratory relief, compensatory relief, and

an unspecified amount of damages. This notice is being provided to you as

counsel of record, for the above-named defendants within the time limits

prescribed, pursuant to the Colorado Governmental Immunity Act, C.R.S. §

24-10-101 et seq. The undersigned hereby reserves the right to add claims

and defendants as they become revealed, including claims in state court.

In Sawyer v. Washington County Nursing Home, No. 20-cv-01789-WJM-SKC,

2021 WL 877739 (D. Colo. Mar. 9, 2021), the Court addressed whether a plaintiff had

substantially complied with the CGIA notice requirements. The Court emphasized the

importance that the notice letter (or other written notice) make “clear exactly what conduct

the plaintiff challenged and the remedy sought.” Sawyer, 2021 WL 877739, at *4 (citing

Katz, 85 F. Supp. 2d at 1031-32 (finding substantial compliance where unrepresented

plaintiff wrote to city attorney, named public official defendants, described the

circumstances of his discharge from employment and resulting loss of income, and stated

that the letter constituted notice under § 20–10–109); Carothers v. Archuleta Cnty. Sheriff,

159 P.3d 647, 652 (Colo. App. 2006) (finding substantial compliance where letter

contained names and addresses of plaintiffs and attorneys, identified public officials,

described incident and injuries suffered, and enumerated losses for which damages were

sought); Bresciani v. Haragan, 968 P.2d 153, 159-60 (Colo. App. 1998) (finding

substantial compliance where notice stated that law enforcement officers had damaged

plaintiff and his family’s personal property during a search, and that plaintiffs were

“considering filing a civil rights action”)).

Here, Plaintiff’s notice contains almost no information about the facts underlying

his intent to sue. See Ex. C [#1] at 27. Plaintiff does not mention the dates he was

arrested, held, or released; the criminal cases or sentences which purportedly lead to his

detention; or any information regarding his attempts to obtain his release from the jail.

See id. The letter is dated less than two weeks after Plaintiff was released from jail, and

perhaps he simply believed that the parties seeing his letter would remember and know

him and why he was suing. Regardless, more is needed here. As the Sawyer court

stated, “[i]t is immaterial whether Defendant was able to speculate as to details of

Plaintiff’s claims.” 2021 WL 877739, at *4 (citing Jacob v. City of Colorado Springs, 485

P.2d 889, 891 (Colo. 1971)). “A finding of substantial compliance in this case would

subvert the purpose of the CGIA’s notice requirement and open the door for parties to

satisfy the requirement with brief correspondence consisting of cursory and vague

references . . . .” Sawyer, 2021 WL 877739, at *4. Thus, the Court finds that Plaintiff has

failed to substantially comply with the notice requirement of the CGIA.

Although dismissal based on subject matter jurisdiction is typically “without

prejudice,” dismissal under the CGIA is “with prejudice” where the jurisdictional deficiency

cannot be cured. See Sawyer, 2021 WL 877739, at *2, 4 (citing Aspen Orthopaedics &

Sports Med., LLC v. Aspen Valley Hosp. Dist., 353 F.3d 832, 839 (10th Cir. 2003)). Here,

the 182-day deadline for Plaintiff to give notice has long since passed, and therefore he

cannot cure the defects of his notice. See Colo. Rev. Stat. § 24-10-109(1).

Accordingly, the Court recommends that Plaintiff’s claims of respondeat superior,

infliction of emotional distress, and negligence (including negligent hiring, negligent

retention, negligent supervision, and negligent infliction of emotional distress) be

dismissed with prejudice.

IV. Conclusion

Based upon the foregoing,

IT IS HEREBY RECOMMENDED that the Motion [#21] be DENIED in part and

GRANTED in part. The Court recommends that the Motion be denied with respect to

Plaintiff’s Eighth Amendment and Fourteenth Amendment claims asserted under Claim

One. The Court recommends that the Motion be granted to the extent that Plaintiff’s

Fourth Amendment claim asserted under Claim One, as well as Claims Two, Three, Four,

and Five, be dismissed as outlined above.

IT IS HEREBY ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall

have fourteen (14) days after service of this Recommendation to serve and file any written

objections in order to obtain reconsideration by the District Judge to whom this case is

assigned. A party’s failure to serve and file specific, written objections waives de novo

review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v.

Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and

legal questions. Makin v. Colo. Dep’t of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999);

Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party’s objections to this

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., 73 F.3d 1057, 1060 (10th Cir. 1996).

Dated: September 16, 2021 BY THE COURT:

pe AZM,

Kristen L. Mix

United States Magistrate Judge

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