Carbajal v. McCann

• Decision Date: 30 March 2020
• Docket Number: No. 18-1132,18-1132
• Parties: VICTORIA CARBAJAL; DEAN CARBAJAL; LUIS LEAL, Plaintiffs - Appellants, v. BETH McCANN, District Attorney for the Second Judicial District in her official capacity; MITCHELL R. MORRISSEY, in his individual capacity; JEFFREY WATTS, Investigator for the Second Judicial District, in his individual capacity; ROBERT FULLER, Investigator for the Second Judicial District, in his individual capacity; REBEKAH MELNICK, Deputy District Attorney for the Second Judicial District, in her individual capacity; LARA MULLIN, Deputy District Attorney for the Second Judicial District, in her individual capacity; MILES FLESCHE, District Administrator and Clerk for the Second Judicial District, in his official capacity; ANNE MANSFIELD, District Court Judge for the Second Judicial District, in her official and individual capacities; MICHAEL MARTINEZ, District Court Judge for the Second Judicial District, in his official and individual capacities; ANDREW KEEFER, Deputy Sheriff for the Denver Sheriffs Department, in his official and individual capacities; MICHAEL SIMPSON, Detective for the Denver Police Department, in his official and individual capacities; JAY LOPEZ, Detective for the Denver Police Department; in his official and individual capacities; GILBERT HAGAN, Detective for the Denver Police Department, in his official and individual capacities; CAROL DWYER, a co-conspirator with the Second Judicial District Attorneys Office, in her individual capacity; WELLS FARGO, a corporation; JANELL KAVANAUGH, Vice President/investigator for Wells Fargo, in her individual capacity; BRIAN BERARDINI, a co-conspirator with the Second Judicial District Attorneys Office, in his individual capacity; MICHAEL CARRIGAN, a co-conspirator with the Second Judicial District Attorneys Office, in his individual capacity; MARIE WILLIAMS, a co-conspirator with the Second Judicial District Attorneys Office, in her individual capacity; PHILIP J. WEISER, Attorney General for the State of Colorado in his official capacity; JOHN SUTHERS, in his individual capacity, Defendants - Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

VICTORIA CARBAJAL;DEAN CARBAJAL; LUIS LEAL, Plaintiffs - Appellants, v. BETH McCANN, District Attorney for the Second Judicial District in her official capacity;^*MITCHELL R. MORRISSEY, in his individual capacity;JEFFREY WATTS, Investigator for the Second Judicial District, in his individual capacity;ROBERT FULLER, Investigator for the Second Judicial District,in his individual capacity; REBEKAH MELNICK, Deputy District Attorney for the Second Judicial District,in her individual capacity; LARA MULLIN, Deputy District Attorney for the Second Judicial District,in her individual capacity; MILES FLESCHE, District Administrator and Clerk for the Second Judicial District,in his official capacity; ANNE MANSFIELD, District Court Judge for the Second Judicial District,in her official and individual capacities;MICHAEL MARTINEZ,District Court Judge for the Second Judicial District, in his official and individual capacities;ANDREW KEEFER, Deputy Sheriff for the Denver Sheriffs Department, in his official and individual capacities;MICHAEL SIMPSON, Detective for the Denver Police Department,in his official and individual capacities; JAY LOPEZ, Detective for the Denver Police Department;in his official and individual capacities; GILBERT HAGAN, Detective for the Denver Police Department,in his official and individual capacities; CAROL DWYER,a co-conspirator with the Second Judicial District Attorneys Office, in her individual capacity;WELLS FARGO, a corporation; JANELL KAVANAUGH, Vice President/investigator for Wells Fargo,in her individual capacity; BRIAN BERARDINI, a co-conspirator with the Second Judicial District Attorneys Office,in his individual capacity; MICHAEL CARRIGAN,a co-conspirator with the Second Judicial District Attorneys Office, in his individual capacity;MARIE WILLIAMS, a co-conspirator with the Second Judicial District Attorneys Office, in her individual capacity;PHILIP J. WEISER, Attorney General for the State of Colorado in his official capacity;^**JOHN SUTHERS, in his individual capacity, Defendants - Appellees.

No. 18-1132

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

March 30, 2020

(D.C. No. 1:12-CV-03231-PAB-KLM)

(D. Colo.)

ORDER AND JUDGMENT^***

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.

Victoria Carbajal, Luis Leal, and Dean Carbajal, a Colorado inmate, all appearing pro se,¹ appeal from the district court's entry of final judgment in favor of Defendants in this 42 U.S.C. § 1983 action. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further proceedings.

I. Background

This case stems from Colorado's criminal prosecution of Mr. Carbajal in 2010 and 2011. The Colorado Court of Appeals summarized the result in its affirmance on direct appeal:

The defendant, Dean Carbajal, and the victim dated for almost a year before they broke up in early 2010. Soon after the breakup, a court issued a protection order, prohibiting Carbajal from contacting the victim. Yet, Carbajal followed the victim for the next few months, showing up at her house and workplace. One night, Carbajal went to the victim's house and,according to her neighbors, was holding a knife, threatening to kill himself. The victim's neighbor called the police, who later found and arrested Carbajal.

A jury found Carbajal guilty of five counts of protection order violation, five counts of violating bail bond conditions, two counts of burglary, two counts of criminal trespass, one count of kidnapping, and two counts of harassment by stalking.

People v. Carbajal, No. 12CA0410, slip op. at 1 (Colo. App. June 30, 2016).²

But the jury acquitted Mr. Carbajal of one charged burglary count. Mr. Carbajal, together with his mother, Ms. Carbajal, and family friend, Luis Leal, then brought this wide-ranging action. They assert claims against police, prosecutors, judicial officers, and others for their alleged roles in connection with the burglary charge that did not result in a conviction and other related actions.

The following aspects of Mr. Carbajal's prosecution pertain to the arguments raised on appeal.

When the prosecutor Defendants initially filed charges against Mr. Carbajal, they did so by filing five cases in Denver County Court in August 2010. The County Court dismissed four of the cases by September 24, 2010, and transferred the remaining case to the Denver District Court. The prosecutors then moved to amend the complaint in the transferred case to include the charges brought in the dismissed cases. Mr. Carbajalclaims that by filing the four dismissed cases—he calls them "shell" cases—the prosecution Defendants abused the criminal process. See Aplt. Opening Br. at 19.

As Mr. Carbajal prepared to attend an unrelated criminal case in January 2011, he alleges that Deputy Keefer conspired with investigator Watts and prosecutor Mullin to harass and use force against him to prevent him from mounting a defense and in retaliation for civil litigation he filed against Watts and others. Mr. Carbajal claims that Deputy Keefer then used excessive physical force against him.

In February 2011, prosecutors filed a motion to add charges related to an alleged July 2010 burglary. Mr. Carbajal contends that the investigators and prosecutors knew that he did not commit burglary in July 2010 and that by pursuing these charges various Defendants engaged in malicious prosecution and abused the criminal process.

Later in 2011, prosecutors filed contempt of court charges against Ms. Carbajal and Mr. Leal due to their alleged failure to appear at a hearing in violation of subpoenas. Prosecutors later moved to dismiss these charges. Ms. Carbajal and Mr. Leal now claim that various Defendants engaged in malicious prosecution and abused the criminal process by pursuing these charges.

The magistrate judge recommended that all claims against all parties be dismissed at the pleading stage, with the lone exception of the excessive force claim against Deputy Keefer in his individual capacity. The district judge adopted this recommendation and granted dismissal of some claims under Rule 12(b)(1) and the remainder under Rule 12(b)(6). Deputy Keefer then sought dismissal of the remaining claim based on Mr. Carbajal's failure to exhaust applicable administrative remedies. The district courtheld an evidentiary hearing on Deputy Keefer's request and found that Mr. Carbajal did not exhaust his administrative remedies. This appeal followed.

Mr. Carbajal filed a motion to proceed on appeal without prepayment of costs and fees. We then issued an order to show cause why this appeal should not be dismissed as to Mr. Carbajal due to his failure to pay the filing fee as required by 28 U.S.C. § 1915(b)(1), given Mr. Carbajal's possible prior "strikes" under the Prison Litigation Reform Act of 1995 (PLRA).³

II. Discussion

A. Mr. Carbajal's PLRA Strikes

Before addressing Mr. Carbajal's appeal, we consider whether he has accumulated three strikes and must first prepay the appellate filing fee.

Congress passed the PLRA to address the "sharp rise in prisoner litigation in the federal courts." Woodford v. Ngo, 548 U.S. 81, 84 (2006). The PLRA included several measures "designed to prevent sportive filings in federal court." Skinner v. Switzer, 562 U.S. 521, 535 (2011). Under the PLRA, prisoners obtain a "strike" against them for purposes of future in forma pauperis eligibility when their "action or appeal in a court of the United States . . . was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted . . . ." 28 U.S.C. § 1915(g); see also Childs v. Miller, 713 F.3d 1262, 1265 (10th Cir. 2013). Once a prisoner accumulates three strikes, he must prepay the entire filing fee beforefederal courts may consider his civil actions and appeals. Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1175-76 (10th Cir. 2011), abrogated on other grounds by Coleman v. Tollefson, 575 U.S. 532 (2015).

In our order to show cause, we identified five possible prior strikes against Mr. Carbajal.

1. Carbajal v. City & County of Denver

In Carbajal v. City & County of Denver, No. 1:11-cv-02826-LTB (D. Colo. Feb. 23, 2012), the district court dismissed Mr. Carbajal's action under Fed. R. Civ. P. 41(b) for failure to comply with Fed. R. Civ. P. 8 after providing him with two chances to amend his complaint to rectify the issues identified by the court. See Carbajal v. City & Cty. of Denver, 502 F. App'x 715, 716 (10th Cir. 2012). Ordinarily, dismissal for failure to prosecute under Rule 41(b) does not count as a strike under § 1915(g), see Hafed, 635 F.3d at 1179, and we decline to assess one against Mr. Carbajal related to case No. 1:11-cv-02826.

2. Carbajal v. Hotsenpiller

In Carbajal v. Hotsenpiller, No. 1:12-cv-02007-LTB (D. Colo. Sept. 5, 2012), Mr. Carbajal "filed a § 1983 complaint in federal district court asserting five claims against numerous individuals involved in his state case." Carbajal v. Hotsenpiller, 524 F. App'x 425, 427 (10th Cir. 2013). "The district court held that three of the claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994), because success on those claims would imply the invalidity of his state convictions." 524 F. App'x at 427 (parallel citations omitted). The district court dismissed Mr. Carbajal'sremaining two claims under Younger v. Harris, 401 U.S. 37 (1971), which mandates that federal courts abstain from hearing certain claims that involve important state interests and could be brought in a pending state proceeding. See 524 F. App'x at 427-28. While the Tenth Circuit has not yet addressed the issue, the Ninth Circuit has held that a Younger dismissal does not count as a strike because such a dismissal is comparable to a dismissal for lack of subject matter jurisdiction. Washington v. Los Angeles Cty. Sheriff's Dep't, 833 F.3d 1048, 1058 (9th Cir. 2016). A dismissal generally only counts as a strike if all claims in the action are dismissed on a § 1915(g) ground. Thomas v. ...