Kirchner v. Marshall, Civil Action No. 20-cv-00114-MEH

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtMichael E. Hegarty, United States Magistrate Judge.
Decision Date10 August 2020
Docket NumberCivil Action No. 20-cv-00114-MEH

Former Chief Deputy Public Defender for Jefferson County, Defendants.

Civil Action No. 20-cv-00114-MEH


August 10, 2020


Michael E. Hegarty, United States Magistrate Judge.

Before the Court are Plaintiff's Motion for Preliminary Injunction [filed June 15, 2020; ECF 44], Defendant Arvada Police Department's Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b) [filed April 17, 2020; ECF 25], and a Motion to Dismiss filed by Defendants Jill Marshall, Judge Philip James McNulty, Miriam Stohs, and Rachel A. Oliver (collectively, the "State Defendants") [filed April 29, 2020; ECF 33]. The Court discussed Plaintiff's motion for injunctive relief with the parties at a Status Conference on July 13, 2020 (ECF 52). For the following reasons, the Court will deny the Plaintiff's motion and grant the Defendants' motions.


I. Procedural History

Plaintiff, proceeding pro se, initiated this action pursuant to 42 U.S.C. § 1983 on January 13,

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2020, alleging seven claims for relief: (1) false arrest in violation of the Fourth Amendment; (2) double jeopardy in violation of the Fifth Amendment; (3) ineffective assistance of counsel in violation of the Sixth Amendment; (4) cruel and unusual punishment in violation of the Eighth Amendment; (5) denial of equal protection in violation of the Fourteenth Amendment; (6) criminal acts including kidnapping; and (7) negligence and/or denial of procedural due process ("state inaction") in violation of the Fourteenth Amendment. ECF 1. Defendants responded to the Complaint by filing the present Motions to Dismiss on April 17, 2020 and April 29, 2020. ECF 25, 33. At a preliminary status conference on May 14, 2020, the Court noted Plaintiff's detention status (i.e., commitment at the Colorado Mental Health Institute in Pueblo, Colorado ("CMHIP")) and directed the parties, including CMHIP representatives, to provide the Court with information concerning Plaintiff's competency to proceed in this case. ECF 40. The next day, Defendants filed an unopposed motion seeking a temporary stay of discovery pending resolution of the Defendants' dispositive motions; the Court granted the motion on May 19, 2020. ECF 42. Plaintiff filed the present motion for preliminary injunction on June 15, 2020, and Defendants timely filed responses on July 6, 2020. ECF 44, 50, 51. Meanwhile, the Court received information, including medical records and letters from Plaintiff's treating health providers, concerning Plaintiff's competency. At a status conference on July 13, 2020, the Court discussed with the parties proceeding with the case. ECF 52. The Court is now fully advised and will proceed to address the pending motions.

II. Statement of Facts

The following are factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by Plaintiff in the operative Complaint, which are taken as true for analysis under Fed. R. Civ. P. 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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Plaintiff is currently in the custody of the CMHIP; he was committed after serving a sentence in the Colorado Department of Corrections ("CDOC").

On November 18, 2011, Plaintiff was arrested and charged with Attempted Murder and several counts of assault after being accused of stabbing his twin brother in the abdomen. Following a psychiatric evaluation on May 2, 2013, Dr. John DeQuardo found Plaintiff to be sane. On December 5, 2013, Jefferson County District Court in Golden, Colorado entered a Plea Agreement ("split plea"), which contained the following terms: a finding of not guilty by reason of insanity ("NGRI") to Assault in the First Degree in violation of Colo. Rev. Stat. §18-3-202(1)(a) (second count), and a plea of guilty to Assault in the Second Degree, Drugging Victim, in violation Colo. Rev. Stat. §18-3-203(l)(e) (fifth count). The Prosecution did not contest the issue of insanity on the second count and, as a stipulation for the NGRI plea, Plaintiff was instructed to plead guilty to the fifth count. Plaintiff waived a factual basis and his right to any appeal on the fifth count, and received a four-year sentence in the CDOC. After completing his CDOC sentence, he was committed to the Department of Human Services at CMHIP "until restored to sanity for a sentence of one day to life," as a result of the NGRI adjudication.

On April 25, 2018, the Chief Executive Officer of CMHIP filed a "Notice of Temporary Physical Removal for Treatment and Rehabilitation - Increase to Supervised." Deputy State Public Defender Garen Gervey entered his appearance on Plaintiff's behalf on May 7, 2018. On May 17, 2018, Plaintiff filed a pro se Petition for Post-Conviction Relief Pursuant to Crim. P. 35(c) arguing that a "split plea" violates Double Jeopardy and is a cruel and unusual punishment that violates his due process and equal protection rights; he requested a hearing and counsel to represent him.

On July 11, 2018, Mr. Gervey moved to withdraw based on a conflict of interest, in that

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Plaintiff was represented by Defendant Deputy State Public Defender Miriam Stohs when he entered into the plea agreement. The court granted the motion to withdraw and appointed Alternate Defense Counsel ("ADC") Jennifer Melton1 to represent Plaintiff on July 17, 2018. The court's order is on a standard form and does not indicate whether the court had appointed Melton to represent Plaintiff for his post-conviction proceeding, the temporary physical removal for treatment and rehabilitation proceeding, or both. On July 19, 2018, the Honorable Judge Philip McNulty denied Plaintiff's post-conviction petition and request for counsel.

On July 25, 2018, Defendant ADC Rachel Oliver substituted as counsel for Plaintiff. The court set a hearing on the temporary physical removal for treatment and rehabilitation proceeding for September 10, 2018. Meanwhile, on August 16, 2018, Plaintiff filed a pro se motion for reconsideration of the denial of his post-conviction petition, in which he argued that he was entitled to a hearing. On August 29, 2018, ADC Margaret Baker substituted as counsel for Plaintiff since Oliver worked in the same office as Gervey and Stohs. The court denied Plaintiff's motion for reconsideration on August 30, 2018 saying, "The Court does not accept pro se filings from litigants represented by counsel." Plaintiff believes that a notice of appeal, based on the court's July 19, 2018 denial of the post-conviction motion, was due to be filed by September 6, 2018.

On September 6, 2018, a district attorney filed an "amended response" withdrawing her previous objection to the Notice of Temporary Physical Removal for Treatment and Rehabilitation, and the court vacated the September 10, 2018 hearing.

On November 2, 2018, Baker notified the Office of Alternate Defense Counsel of the missed deadline for filing Plaintiff's appeal. Baker subsequently provided an affidavit regarding the potential reasons for the missed deadline and filed a motion for Plaintiff to proceed in forma

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pauperis on appeal. Robin M. Lerg was appointed as Plaintiff's ADC for his appeal and filed an opening brief on February 28, 2019, in which she raised the following issues: (1) "the trial court erred in summarily denying Mr. Kirchner's Crim. P. 35(c) Motion while he was represented by counsel," and (2) "this Court must remand to correct the judgment of conviction, sentence to reflect a plea of Not Guilty by Reason of Insanity of First-Degree Assault with a deadly weapon causing serious bodily injury (Clerical Error)."


I. Treatment of a Pro Se Litigant's Pleadings

A pro se plaintiff's "pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). "Th[e] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009) (quoting Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997)). The Tenth Circuit interpreted this rule to mean, if a court "can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, [it] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013) (quoting Hall, 935 F.2d at 1110). However, this interpretation is qualified in that it is not "the proper function of the district court to assume the role of advocate for the pro se litigant." Garrett, 425 F.3d at 840 (quoting Hall, 935 F.2d at 1110).

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II. Dismissal Pursuant to Fed. R. Civ. P. 12(b)(1)

Rule 12(b)(1) empowers a court to dismiss a complaint for "lack of subject-matter jurisdiction." Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of the plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008) (recognizing federal courts are courts of limited jurisdiction and "there is a presumption against our jurisdiction"). A court lacking jurisdiction "must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013). A motion to dismiss under Rule 12(b) "admits all well-pleaded facts in the complaint as distinguished from conclusory allegations." Smith v. Plati, 258...

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