Carrier v. Lundstedt

• Decision Date: 04 March 2015
• Docket Number: Civil Action No. 13-cv-02933-PAB-CBS
• Parties: JOSHUA D. CARRIER, Plaintiff, v. MICHELLE LUNDSTEDT, AMY FITCH, and ANDY BRYANT, Defendants.
• Court: U.S. District Court — District of Colorado

JOSHUA D. CARRIER, Plaintiff,
v.
MICHELLE LUNDSTEDT, AMY FITCH, and ANDY BRYANT, Defendants.

Civil Action No. 13-cv-02933-PAB-CBS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

March 4, 2015

Judge Philip A. Brimmer

ORDER

This matter is before the Court on the Recommendation of United States Magistrate Judge (the "Recommendation") [Docket No. 48] filed on December 22, 2014. The magistrate judge recommends that the Motion to Dismiss Second Amended Prisoner Complaint (Doc. No. 18) Pursuant to Fed.R.Civ.P. 12(b)(1) and (6) [Docket No. 34] filed by defendants Michelle Lundstedt, Amy Fitch, and Andy Bryant be granted. Docket No. 48 at 23. The Court granted plaintiff an extension of time to file an objection to the Recommendation, Docket No. 50; thus, plaintiff's objection [Docket No. 51] filed February 6, 2015 is timely. In light of plaintiff's pro se status, the Court construes his filings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).¹

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The Court will "determine de novo any part of the magistrate judge's disposition that has been properly objected to" by plaintiff. Fed. R. Civ. P. 72(b)(3). "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court . . . ." United States v. One Parcel of Real Property Known As 2121 East 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996) (emphasis added). To be sufficiently specific, an objection must "enable[] the district judge to focus attention on those issues—factual and legal—that are at the heart of the parties' dispute." See id. at 1059 (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)); see also Lockert v. Faulkner, 843 F.2d 1015, 1019 (7th Cir. 1988) ("an objection stating only 'I object' preserves no issue for review"). In the absence of a proper objection, the Court may review a magistrate judge's recommendation under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas, 474 U.S. at 150 ("[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings").

Plaintiff first argues that the Recommendation erred in concluding that defendants Fitch and Bryant were entitled to Eleventh Amendment immunity. Docket No. 51 at 2-3. Plaintiff states that he "disagrees that the defendants were acting consistent with conduct related to their professional duties. The defendants are not entitled to the Eleventh Amendment immunity, since they were acting as county employees not state or government employees, which are entitled to this immunity." Id.

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It is unclear to which aspect of the Recommendation plaintiff directs his argument. The Recommendation concluded that defendants Fitch and Bryant have prosecutorial immunity from plaintiff's 42 U.S.C. § 1983 claims against them in their individual capacities, Docket No. 48 at 7, and that plaintiff's § 1983 claims against defendants Fitch and Bryant in their official capacities were barred by the Eleventh Amendment. Id. at 15. Prosecutorial immunity applies only to those claims brought against defendants in their individual capacities and does not therefore implicate the Eleventh Amendment, which applies only to claims brought directly against a state, its agencies, and its officials sued in their official capacities. See Cady v. Arenac Cnty., 574 F.3d 334, 342 (6th Cir. 2009) (distinguishing between prosecutorial immunity and Eleventh Amendment immunity). Thus, the Recommendation did not conclude, as plaintiff's argument could be construed to suggest, that defendants Fitch and Bryant were granted Eleventh Amendment immunity in their individual capacities.

To the extent plaintiff's argument can be construed as asserting that defendants Fitch and Bryant were incorrectly granted prosecutorial immunity for claims against them in their individual capacities, the Court disagrees. The only aspect of plaintiff's argument arguably relevant to the issue of prosecutorial immunity is plaintiff's claim that defendants Fitch and Bryant were not acting "consistent with conduct related to their professional duties." Docket No. 51 at 2. The Court construes this as an argument that plaintiff's individual capacity claims against defendants Fitch and Bryant implicated conduct outside the "judicial process" such that they are not protected by prosecutorial immunity. See Gagan v. Norton, 35 F.3d 1473, 1475 (10th Cir. 1994). Prosecutors are entitled to absolute immunity for suits brought pursuant to § 1983 for activities

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"intimately associated with the judicial . . . process." Id. (quotations and emphasis omitted). In determining what types of activities fall into this category, "the determinative factor is 'advocacy'" such that "the more distant a function is from the judicial process and the initiation and presentation of the state's case, the less likely it is that absolute immunity will attach." Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1490 (10th Cir. 1991). Plaintiff's complaint alleges that defendants Fitch and Bryant received a list of the phone calls that he made from jail, that defendants Fitch and Bryant had access to tapes of those calls, and that the tapes were being categorized and "beginning to be listened to," although he does not say by whom. See, e.g., Docket No. 18 at 8. Although the Recommendation concluded that such activities fell within the judicial process, plaintiff "disagrees that the fact of knowingly retrieving" the recording of his phone calls was within the scope of defendants Fitch's and Bryant's "prosecutorial duties." See Docket No. 51 at 3. However, plaintiff does not point to any allegations that support his argument² and fails to account for the fact that "prosecutors are entitled to absolute immunity for their decisions to prosecute, their investigatory or evidence-gathering actions, their evaluation of evidence, . . . and their determination of what information to show the court." See Nielander v. Bd. of Cnty. Comm'rs of Cnty. of Republic, Kan, 582 F.3d 1155, 1164 (10th Cir. 2009). Plaintiff's allegations suggest that, at most, defendants Fitch and Bryant were engaging in evidence gathering and

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evaluation activities for which they are entitled to prosecutorial immunity.³ Plaintiff provides no persuasive basis for concluding otherwise.

The Court turns to plaintiff's claims against defendants Fitch and Bryant in their official capacities. Plaintiff's primary argument appears to be that defendants Fitch and Bryant were acting as county employees and are not therefore entitled to Eleventh Amendment immunity. Docket No. 51 at 2; see also id. at 5. Plaintiff is incorrect. An official capacity suit brought against a public employee in his or her official capacity is in actuality a suit against the official's employer or office. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). Defendants Fitch and Bryant are employees of the Fourth Judicial District Attorney, Docket No. 18 at 2, which the Tenth Circuit considers a state office under Colorado law. See Rozek v. Topolnicki, 865 F.2d 1154, 1158 (10th Cir. 1989) ("Office of the District Attorney [is] entitled to Eleventh Amendment immunity in this case."); see also Romero v. Boulder Cnty. DA's Office, 87 F. App'x 696, 698 (10th Cir. 2004) (unpublished). As a result, plaintiff's claims against defendants Fitch and Bryant in their official capacities are considered claims against the state and are therefore barred by the Eleventh Amendment. See Rozek, 865 F.2d at 1158. The Court finds no error in this aspect of the Recommendation.⁴

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Plaintiff objects to the Recommendation's conclusion that he failed to state a claim for violation of his Sixth Amendment right to counsel against defendant Lundstedt. Docket No. 51 at 3. The Recommendation concluded that a violation of attorney-client privilege "implicates the Sixth Amendment right to counsel only . . . when the government interferes with the relationship between a criminal defendant and his attorney." Docket No. 48 at 8 (quoting Partington v. Gedan, 961 F.2d 852, 863 (9th Cir. 1992)). The Recommendation determined that plaintiff's allegations did not state a plausible claim that plaintiff "was injured by, or the prosecution benefitted from, the interception of his twelve outgoing phone calls." Id. at 9.

Plaintiff argues that the allegations in the second amended complaint are sufficient to state a plausible claim that he was injured by the violation of his Sixth Amendment right to counsel. Docket No. 51 at 3-4. The Sixth Amendment guarantees an accused the right to counsel "in order to secure the fundamental right to a fair trial guaranteed by the Due Process Clause of the Fourteenth Amendment." Shillinger v. Haworth, 70 F.3d 1132, 1141 (10th Cir. 1995) (citing Strickland v. Washington, 466 U.S. 668, 684-85 (1984)). "When the government deliberately interferes with the confidential relationship between a criminal defendant and defense counsel, that interference violates the Sixth Amendment right to counsel if it substantially prejudices

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the criminal defendant." Williams v. Woodford, 384 F.3d 567, 584-85 (9th Cir. 2002) (citing Weatherford v. Bursey, 429 U.S. 545, 557-58 (1977)); see also Stanley v. Vining, 602 F.3d 767, 770 (6th Cir. 2010) ("[i]n order to state a § 1983 cog nizable claim for deprivation of right to counsel, there must be some allegation indicating an interference with the prisoner's relationship with counsel"). Construing the second amended complaint liberally, the Court understands plaintiff to allege that, by failing to add his attorney's phone number to the "phone list," defendant Lundstedt caused his attorney-client telephone conversations to be recorded and made available to...