Harper v. City of Cortez, Mont. Co.
| Decision Date | 10 August 2015 |
| Docket Number | Civil Action No. 14-cv-02984-KLM |
| Parties | MARION ORNESTUS HARPER, III, Plaintiff, v. CITY OF CORTEZ, MONT. CO. SHERIFF OFFICE, CORTEZ POLICE DEPT., MONT. CO. BOARD OF COMMISSIONERS, MONT. CO. CPL. STEPHANOKOS, SGT. ANGEL MARTINEZ, OFF. FRANK KOBEL, MONT. CO. UNDERSHERIFF ROBIN CRONK, and MONT. CO. LT. TALLEY, Defendants. |
| Court | U.S. District Court — District of Colorado |
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court2 on City of Cortez Defendants'3 Motion to Dismiss[#10]4 (the "Cortez MTD") and the County Defendants'5 Motion to Dismiss [#17] (the "County MTD" and collectively with the Cortez MTD, the "Motions"). Plaintiff, who proceeds in this matter pro se6, filed a joint Response [#37] to both Motions. The Cortez Defendants filed a reply [#41] in further support of their motion (the "Cortez Reply") and the County Defendants filed a reply [#42] in further support of their motion (the "County Reply"). The Court has reviewed the Motions, the Response, the Replies, the entire docket, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Cortez Motion [#10] and the County Motion [#17] are GRANTED in part and DENIED in part.
I. Background
Plaintiff asserts various claims against Defendants pursuant to 42 U.S.C. § 1983 for alleged violations of the Fourth, Eighth, and Fourteenth Amendments. See Second Am. Compl. [#9] at 3-5. Plaintiff also brings a trespass claim against the Cortez Police Department. Id. at 4. Plaintiff brings an invasion of privacy claim against the Cortez PoliceDepartment, the Montezuma County Sheriff's Office, and potentially against Defendant Martinez who Plaintiff alleges "conducted an illegal search and seizure of Plaintiff's personal property . . . ." Id. Plaintiff also purports to bring a claim for "failure to prevent conspiracy" against certain Defendants. Id.
Some of Plaintiff's claims are based on incidents in June and July 20127 in which former defendant Cronk and Defendant Martinez allegedly "illegally entered Plaintiff's apartment . . . and removed two boxes of personal belongings including more than $3,000.00 in cash awarded to the Plaintiff" in settlement of other lawsuits. Id. at 3. Plaintiff alleges that these Defendants did not have a warrant or probable cause, and there were no exigent circumstances. Id. Plaintiff further alleges that former defendant Cronk and Defendant Martinez removed Plaintiff's fiancé from the premises in violation of his "rights of associational privacy under the Fourteenth Amendment . . . ." Id. Plaintiff maintains that as a result of the theft of the $3,000 from his apartment he became homeless which, in turn, "caused the Plaintiff, his wife, and his children extreme trauma for which the Plaintiff was treated . . . on more than twenty separate occasions between 2012 and 2014." Id.
Plaintiff further alleges that on October 6, 2014,8 Defendant Martinez and Defendant Kobel "conspired to deprive [him] of his Constitutional protection from cruel and unusual punishment by forcing him to enter K-9 Unit." Id. Plaintiff states that "[i]t is not City [o]f Cortez Police Dept. policy to transport human beings in K-9 Units for routine municipal court appearances due to the danger of attack by the canine." Id. Plaintiff alleges that heobjected to being transported in the K-9 unit and that Defendant Kobel threatened him with criminal charges and arrest if he refused to enter the K-9 unit. Id. at 4. Plaintiff maintains that being in the K-9 unit "was entirely torture" for him and that Defendants Martinez, Kobel, Stefanakos, and Talley were deliberately indifferent and negligent and gratuitously inflicted "pain and torture" in violation of the Eighth Amendment. Id. Plaintiff alleges that Defendant Stefanakos whispered in Plaintiff's ear: "I'm going to do you a favor[,] Harper[,] by not securing your ankle or waist cuffs." Id. Plaintiff alleges that as a result of Defendant Stefanakos' failure to secure the restraints, Plaintiff was "bitten, scratched, and tortured" by canine "Dusty." Id. Plaintiff avers that Defendant Talley, Defendant Stefanakos' supervisor, was present and observed the incident. Plaintiff alleges that he was transported to a hospital for care after he was bitten by the dog and that he "has continued to suffer anxiety, insomnia, and physical pain associated with the attack." Id.
In the Cortez MTD, the Cortez Defendants argue that Plaintiffs' claims against them should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Specifically, the Cortez Defendants argue that Plaintiff's claims are barred by the doctrine of res judicata because he previously litigated his claims in case 2014CV3 filed in the District Court of Montezuma County (the "State Court Case") and filed case 14S42 in small claims court relating to the 2014 Incident (the "Small Claims Case"). Cortez MTD [#10] at 4-7. The Cortez Defendants further argue that Plaintiff's claims relating to the 2012 Incident are time-barred. Id. at 7-8. The Cortez Defendants maintain that Plaintiff fails to state any claims against them pursuant to Fed. R. Civ. P. 12(b)(6). Id. at 9-11. These Defendants aver that the Court does not have jurisdiction over any state law claims and they seek attorneys' fees because Plaintiff's claims are "frivolous, meritless, and vexatious." Id. at 12-14. The Cortez Defendants attach the following documents to their Motion: (1) the Amended Complaint filed in the State Court Case [#10-1]; (2) the "Order: Defendants' Motion to Dismiss Amended Complaint" filed in the State Court Case [#10-2]; (3) the "Notice, Claim and Summons to Appear for Trial (Part 3)" filed in the Small Claims Case [#10-3]; and (4) the docket of the Small Claims Case showing that the case was dismissed with prejudice on January 9, 2015 [#10-4].9
In the County Motion, the County Defendants make the same arguments advanced by the Cortez Defendants and also ask the Court to enjoin Plaintiff from bringing further "vexation litigation" against them. County MTD [#17] at 4-13.
Plaintiff's Response is difficult to understand at times and certain portions appear to have been torn or to have holes which makes it hard to read. Taking that into account, the Court understands Plaintiff to argue10 that he "inadvertently re-file[d]" his previously dismissed federal lawsuit in the District Court of Montezuma County and "assumed that" defense counsel "would have the case removed to a federal court due to the lack of subject matter jurisdiction . . . ." because a previous lawsuit was removed to federal court. Response [#37] at 3 (emphasis omitted). Plaintiff maintains that the state court judges who adjudicated his lawsuits did not have subject matter jurisdiction over his claims. Id. Plaintiff further states:
The Defendants are correct that I have filed numerous lawsuits and complaints. This was done by Plaintiff in order to document events that have transpired since 2012. I have recently been informed that maybe I should have filed with the Court supplemental pleadings instead of filing new lawsuits.
Id. at 4 (emphasis omitted). Plaintiff then lists the 11 lawsuits he has filed against Defendants since 2011. Id. at 5. Plaintiff maintains that "any allegations that include[ ] matters of federal questions" requires adjudication in federal court. Id. Plaintiff admits that he has filed multiple lawsuits based on the same facts against the same defendants. Id. (). Plaintiff avers that the statute of limitations has not expired with regard to the 2012 Incidents because he incorrectly assumed that his filing of the instant lawsuit would be an appeal of a lawsuit he filed in this Court in 2012. Id. at 6. Plaintiff "object[s] to the doctrine of [r]es [j]udicata being a defense to" his claims because he "objects" to the state court adjudicating his claims. Id.
In their Replies, Defendants argue that res judicata applies because the state courts did have jurisdiction over Plaintiff's claims in the state court actions. Cortez Reply [#41] at 3-4; County Reply [#42] at 3. The County Defendants also revisit their argument regarding dismissal pursuant to Fed. R. Civ. P. 12(b)(6), which was not addressed in the Response. County Reply [#42] at 4.
In 2014, Plaintiff filed the State Court Case. His complaint was dismissed with leave to refile on October 20, 2014. See Order Granting Motion to Dismiss [#10-1] at 4. As a result, Plaintiff filed his amended complaint in the State Court Case against the Cortez Police Department in which he alleged that Defendant Martinez entered his apartment and"remov[ed] personal belongings - including $3,000.00 in cash." Amended Complaint [#10-1] at 1. Plaintiff also alleged that on October 6, 2014, Defendant Kobel "subjected [him] to cruel and unusual punishment by forcing [him] to enter the backseat of a Cortez Police Department K-9 Unit where [he] was subsequently bitten . . . ." Id. On December 29, 2014, the state court dismissed the case. See Order: Defendants' Motion to Dismiss Amended Complaint [#10-2] at 1. That order states that the amended complaint "fails to state a claim upon which relief may be granted" and dismissed the case. Id. The order also attached the motion to dismiss it granted. The motion to dismiss argued for dismissal on a variety of grounds, including arguing that the Cortez Police Department is not a proper defendant. See Motion to Dismiss [#10-2] at 3-4.
On October 27, 2014, Plaintiff filed the Notice, Claim and Summons to Appear for Trial (Part 3) to initiate the Small Claims Case. See Notice [#10-3] at 1. The notice is difficult to read but it appears to state the following:
October 6th 2014 Cortez Police and Montezuma Co. Sheriff [Stefanakos] subjected me to cruel and...
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