Fry v. BD. OF CTY. COM'RS OF BACA, Civ. A. No. 88-F-1788.

Decision Date06 November 1991
Docket NumberCiv. A. No. 88-F-1788.
Citation837 F. Supp. 330
PartiesDewayne FRY and Luella Fry, Plaintiffs, v. The BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF BACA, et al., Defendants.
CourtU.S. District Court — District of Colorado


Joseph M. Montano, Leslie A. Fields, Russell O. Stewart, Faegre & Benson, Denver, CO, for plaintiffs Dewayne Fry, Luella Fry, Dallas Fry and Lisa Fry.

James W. Avery, Greengard, Senter, Goldfarb & Rice, Denver, CO, for defendant The Board of County Com'rs of the County of Baca, State of Colorado.

Michael T. Mitchell, Mitchell, Howell & Hill, Parker, CO, for defendants R.L. Turner, J.B. Boaldin and V.E. Moore.



This matter comes before the Court on the following motions: the Motion for Summary Judgment filed on September 6, 1991, by Defendants Baca County and the Baca County Commissioners, Donald Self and Roy Brinkley ("County Defendants"); and the Motion to Dismiss, With Authority, filed June 26, 1991, by Defendants Richard Leo Turner, John B. Boaldin, Verne E. Moore, and Dan Witcher (hereinafter "Landowner-Defendants"). The dispositive motions have been fully briefed by the litigants. Jurisdiction is based on 28 U.S.C.A. § 1331 (West Supp.1991). We first address the Motion for Summary Judgment. For the reasons stated below, the Motion for Summary Judgment is GRANTED IN PART, DENIED IN PART.


Plaintiffs own large tracts of land in Oklahoma and in Southeastern Colorado, near the Oklahoma border.1 The Colorado tracts were purchased by Plaintiffs in 1985. The Colorado and Oklahoma tracts are not contiguous. In October 1985, Plaintiffs sought to open a section line as a road through Baca County, Colorado, between their Colorado properties and the Oklahoma property. On October 7, 1985, the Baca County Board of County Commissioners ("Board") denied Plaintiffs' request. The proposed road was to be built on the property of other landowners. Upon objection of the affected landowners, the Board refused to allow construction of the road.

During the fall and summer of 1986, Baca County Commissioner Donald Self ("Self") ran for re-election. Plaintiffs actively opposed the re-election of Commissioner Self and supported the candidacy of Harry Patrick. Plaintiffs became actively involved in the campaign, allowing their names to be prominently displayed in newspaper advertisements and political literature. During the campaign, the Board's road maintenance record and its refusal to open the section line as a road became major campaign issues. Commissioner Self won re-election.

Meanwhile, Plaintiffs had brought an action in the District Court for the County of Baca. On November 13, 1986, the court issued a judgment declaring that a public roadway had already been designated by Baca County over the land in 1911, and that appropriate Board action was required to vacate the roadway. Fry v. The Board of County Commissioners, 85-CV-79 (District Court, County of Baca, November 13, 1986). On December 18, 1986, the Board received a petition from the adjoining landowners to vacate the roadway. On December 31, 1986, the roadway was vacated by Board resolution.

On April 3, 1987, Plaintiffs filed an action in state court, seeking to have the resolution declared illegal. On October 31, 1988, Plaintiffs filed a seven count complaint to commence the present action in federal district court. On March 3, 1989, we entered an order (1) that denied the Landowner-Defendants' motion to dismiss, and (2) that administratively closed the federal action pending the outcome of the state court action. Fry v. The Board of County Commissioners of the County of Baca, slip op. 88-F-1788 (March 3, 1989). On August 28, 1989, Plaintiffs filed an England petition in the state court to preserve their federal claims for federal court disposition. See England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 415-17, 84 S.Ct. 461, 464-66, 11 L.Ed.2d 440 (1964). On December 18, 1990, the state court issued an order finding in favor of the Defendants. Fry v. The Board of Commissioners of the County of Baca, 87-CV-4 (District Court, County of Baca, December 18, 1990). We then granted Plaintiffs' Motion to Reopen Case, filed March 14, 1991.


Granting summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Ash Creek Mining Co. v. Lujan, 934 F.2d 240, 242 (10th Cir.1991); Metz v. United States, 933 F.2d 802, 804 (10th Cir.1991); Continental Casualty Co. v. P.D.C., Inc., 931 F.2d 1429, 1430 (10th Cir. 1991); Sierra Club v. Lujan, 931 F.2d 1421, 1423 (10th Cir.1991). A genuine issue of material fact exists only where "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Merrick v. Northern Natural Gas Co., 911 F.2d 426, 429 (10th Cir.1990); Vaske v. DuCharme, McMillen & Assocs., Inc., 757 F.Supp. 1158, 1160 (D.Colo.1990). Only disputes over facts that might affect the outcome of the case will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Allen v. Dayco Prods., Inc., 758 F.Supp. 630, 631 (D.Colo. 1990).

In reviewing a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion. Newport Steel Corp. v. Thompson, 757 F.Supp. 1152, 1155 (D.Colo. 1990). All doubts must be resolved in favor of the existence of triable issues of fact. Boren v. Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir.1991); Mountain Fuel Supply v. Reliance Ins. Co., 933 F.2d 882, 889 (10th Cir.1991); Continental Casualty Co., 931 F.2d at 1430.

In a motion for summary judgment, the moving party's initial burden is slight. In Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986), the Supreme Court held that the language of Rule 56(c) does not require the moving party to show an absence of issues of material fact in order to be awarded summary judgment. That is, Rule 56 does not require the movant to negate the opponent's claim. Id. at 323, 106 S.Ct. at 2553. Rather, the moving party must allege an absence of evidence to support the opposing party's case and identify supporting portions of the record. Id.

Once the movant has made an initial showing, the burden of proof shifts to the opposing party. The nonmovant must establish that there are issues of material fact to be determined. Id. at 322-23, 106 S.Ct. at 2552-53. The nonmovant must go beyond the pleadings and designate specific facts showing that there are genuine issues for trial on every element challenged by the motion. Tillett v. Lujan, 931 F.2d 636, 639 (10th Cir.1991). Conclusory allegations will not establish an issue of fact sufficient to defeat summary judgment. McVay v. Western Plains Serv. Corp., 823 F.2d 1395, 1398 (10th Cir.1987).

In reviewing the evidence submitted, the court should grant summary judgment only when there is clearly no issue of material fact remaining. In Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11, the Court held that summary judgment should be granted if the pretrial evidence is merely colorable or is not significantly probative. Similarly, in Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), the Court held that summary judgment is appropriate when the trial judge can conclude that no reasonable trier of fact could find for the nonmovant on the basis of the evidence presented in the motion and the response.

In the instant action, we find that there are genuine issues of material fact with respect to Defendant Baca County. Among others, these justiciable issues remain: whether there were violations of the first amendment, the fourteenth amendment due process clause, and the fourteenth amendment equal protection clause. Defendant Baca County is not entitled to judgment as a matter of law.

We also find that the individual commissioners, Defendants Self and Brinkley, enjoy absolute legislative immunity for their actions. Accordingly, Defendants Self and Brinkley are entitled to summary judgment as a matter of law.


The movants contend that the present action is barred by the doctrine of res judicata. We disagree.

In England, 375 U.S. at 415-17, 84 S.Ct. at 464-66, the Supreme Court held that plaintiffs have a right to return to federal court to litigate federal claims after an authoritative state court ruling is received on issues that formed the basis of the federal court's abstention. The England Court provided that a party could expressly reserve the right to relitigate federal issues in federal court by giving notice to the state court. Id. at 421-22, 84 S.Ct. at 467-68. If a party voluntarily litigates federal issues in the state proceeding, however, res judicata bars relitigation in the federal courts. Id. at 417-19, 84 S.Ct. at 466-67; accord Fisher v. Civil Serv. Comm'n of Salt Lake City, Utah, 484 F.2d 1099, 1100-01 (10th Cir.1973).

Additionally, in Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194-97, 105 S.Ct. 3108, 3120-22, 87 L.Ed.2d 126 (1985), the Supreme Court concluded that a federal court challenge to state zoning laws under the takings and due process clauses did not become ripe prior to plaintiffs obtaining a definitive ruling from state authorities under state inverse condemnation law. The Williamson County Court expressed a preference for litigating state "takings" issues at the state level first. Id.

Here, Plaintiffs' state court amended complaint uses some language to suggest an intent to litigate federal issues in the state court. Plaintiffs, however, filed an England petition. In addition, the state court opinions we have examined indicate that...

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