San Agustin v. El Paso Cnty.

• Decision Date: 28 August 2019
• Docket Number: Civil Action No. 18-cv-02646-MEH
• Parties: JUAN SAN AGUSTIN, JR., Plaintiff, v. EL PASO COUNTY, FOURTH JUDICIAL DISTRICT OF COLORADO, DAN MAY, District Attorney, SHANNON GERHART, Deputy District Attorney, BILL ELDER, El Paso County Sheriff, JOE BREISTER, El Paso County Undersheriff, LISA KIRKMAN, El Paso Legal Advisor, ROBERT JAWORSKI, El Paso County Deputy Sheriff, COLORADO BUREAU OF INVESTIGATIONS, RALPH GAGLIARDI, Colorado Bureau of Investigation Agent, GEORGE BRAUCHLER, District Attorney, MARK HURLBERT, Assistant District Attorney, GRANT FEVURLY, Deputy District Attorney, THE EIGHTEENTH JUDICIAL DISTRICT OF COLORADO, and OFFICERS JOHN DOE 1-11, in their individual and official capacities, Defendants.
• Court: U.S. District Court — District of Colorado

JUAN SAN AGUSTIN, JR., Plaintiff,
v.
EL PASO COUNTY,
FOURTH JUDICIAL DISTRICT OF COLORADO,
DAN MAY, District Attorney,
SHANNON GERHART, Deputy District Attorney,
BILL ELDER, El Paso County Sheriff,
JOE BREISTER, El Paso County Undersheriff,
LISA KIRKMAN, El Paso Legal Advisor,
ROBERT JAWORSKI, El Paso County Deputy Sheriff,
COLORADO BUREAU OF INVESTIGATIONS,
RALPH GAGLIARDI, Colorado Bureau of Investigation Agent,
GEORGE BRAUCHLER, District Attorney,
MARK HURLBERT, Assistant District Attorney,
GRANT FEVURLY, Deputy District Attorney,
THE EIGHTEENTH JUDICIAL DISTRICT OF COLORADO,
and OFFICERS JOHN DOE 1-11, in their individual and official capacities, Defendants.

Civil Action No. 18-cv-02646-MEH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

August 28, 2019

ORDER

Michael E. Hegarty, United States Magistrate Judge.

This action arises out of the investigation, arrest, and prosecution of the Plaintiff Juan San Agustin Jr. ("Plaintiff"), a former inspector with the El Paso County Sheriff's Office. Plaintiff brings eleven claims for relief against the various Defendants, five pursuant to 42 U.S.C. § 1983 and six under state law, as follows:

Claim 1	§ 1983 Malicious Prosecution	All Individual Defendants
Claim 2	§ 1983 Substantive Due Process	All Individual Defendants

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Claim 3	§ 1983 Conspiracy	All Defendants
Claim 4	§ 1983 Monell Claim	El Paso County (EPC)
Claim 5	§ 1983 Monell Claim	4th and 18th District Attorney Offices (DAO)
Claim 6	State Law Respondeat Superior	EPC, 4th and 18th DAOs, Colorado Bureau of; Investigation (CBI)
Claim 7	State Law - Intentional Infliction of; Emotional Distress	All Individual Defendants
Claim 8	State Law - Abuse of Process	May, Brauchler, Hurlbert, Fevurly, Gerhart,; Elder, Breister, Jaworski, Gagliardi
Claim 9	State Law - Defamation	Hurlbert
Claim 10	State Law - Defamation; ("Brady List")	Kirkman, Elder, Breister, May
Claim 11	Tortious Interference with; Economic Advantage	All Defendants

See Am. Compl., ECF No. 50. In response, Defendants filed a "combined" motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) arguing the Court lacks jurisdiction to hear certain claims and the Plaintiff fails to plausibly state the remaining claims. For the reasons that follow, the Court will grant in part and deny in part the Defendants' motion.

STATEMENT OF FACTS

The following are relevant factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by Plaintiff in his Second Amended Complaint, which are taken as true for analysis under Fed. R. Civ. P. 12(b)(1) pursuant to Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995) and under Fed. R. Civ. P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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From 2004 through 2008, Defendant Dan May was the Chief Deputy District Attorney for Colorado's 18th Judicial District. During his time with the 18th Judicial District, Defendant May focused considerable efforts on prosecuting members of the "Sureños Gang." Due to his impact on the gang and its members, the Sureños put out an assassination request or "hit" on Defendant May. The Sureños recruited the "211 Crew," a white supremacist prison gang linked to several high-profile murders and criminal investigations in Colorado, to assassinate Defendant May.

Sean May was a Deputy District Attorney in the 17th Judicial District, the northern neighbor of the 18th Judicial District, during the same time period that Defendant May was aggressively prosecuting the Sureños. On August 27, 2008, as Sean May was walking home through the alley behind his home in north Denver, he was shot and killed by members of the 211 Crew. The assassin mistakenly killed Deputy District Attorney Sean May instead of Defendant May. Although the gang involved in killing Sean May is known, the individual responsible for Sean May's murder has never been found.

In early to mid-2010, a number of other white-supremacist gangs began to expand their foothold in Colorado and to challenge the 211 Crew. To demonstrate that Colorado was 211 Crew's territory, the hierarchy of the gang ordered a lower ranking member of the gang to commit a high-profile homicide of an individual who was not incarcerated within the prison system. The 211 Crew chose a low-ranking member, Evan Ebel, who had incurred a debt to the gang.

Tom Clements, head of the Colorado Department of Corrections, became one of the targets of the 211 Crew. On March 19, 2013, Mr. Clements was assassinated at his home by Ebel, after which Ebel fled to Texas where he died in a shootout with Texas law enforcement. Shortly after Ebel's death, Texas Rangers determined Ebel had come from Colorado and Colorado law enforcement, specifically the Plaintiff and Deputy District Attorney Jeffrey Lindsey of the Fourth

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Judicial District, became involved with the investigation. Colorado Governor John Hickenlooper gave law enforcement use of his plane so that they were able to travel to Texas as quickly as possible to investigate Mr. Clements' death. On arriving in Texas on a second trip, Plaintiff and Lindsey were put in contact with a confidential informant, previously a member of the 211 Crew, who had information relating to the Tom Clements' homicide: high-ranking members of the 211 Crew had ordered the confidential informant to house Ebel after he arrived in Texas so that he could remain hidden until the news of Mr. Clements' murder became less widely publicized.

At or about the same time in 2013, Defendant May (who had been elected District Attorney ("DA") of the Fourth Judicial District) discovered that he was in fact the intended target of the 2008 assassination of Sean May. After learning this, May upgraded all security at the District Attorney's Office to include metal detectors, armed security, and bullet proof glass in the reception area. Also, when meeting with the confidential informant, Texas Ranger James Holland, at the direction of May, immediately asked the informant what he knew about the Sean May murder.

After approximately 120 days, Plaintiff and other members of the investigation team felt they had probable cause to believe that Evan Ebel had not acted alone, and that certain high-ranking members of the 211 Crew, who were out of custody and at large in the community at the time, should be charged with the murder. Despite Plaintiff's insistence that probable cause existed to prosecute these members, May decided to remove Lindsey from the case and refused to bring charges. Plaintiff continued to advocate for the prosecution of those who conspired to murder Tom Clements, at times through the news media.

Meanwhile, on or about August 12, 2013, Kelly Trull, who was a nurse in the El Paso County Jail, was allegedly assaulted by her boyfriend Travis Garretson, an El Paso County Deputy Sheriff. After the alleged assault, Trull went to the house of her friends, Michelle and Scott Mackey,

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who were also employees of the El Paso County Sheriff's Office ("EPCSO"), and they urged Trull to report the incident. At work the following day, Trull reported the assault to Wendy Habert and Defendant Undersheriff Joe Breister, who referred the matter to the Investigations Division. Defendant Detective Lisa Kaiser was assigned to the case. Garretson was arrested and his employment with the Sheriff's Office was suspended.

Trull and Garretson continued to live together and resumed their romantic relationship. Trull did not want Garretson to lose his job, so on September 12, 2013, she went to the EPCSO and informed Detective Kaiser that she had lied when she made her statement accusing Garretson of assaulting her. When Trull arrived at the EPCSO, she was escorted to a room on the second floor of the building by Detective Kaiser for a follow-up interview. Before the interview began, Defendant Sergeant Robert Jaworski called in Defendant Deputy District Attorney ("DDA") Shannon Gerhart and other employees of the EPCSO who all observed the interview from a nearby conference room.

During the interview, Trull admitted to driving under the influence of alcohol and to assaulting Garretson. Trull also indicated that Garretson had acted in self-defense. At 9:49 a.m., Detective Kaiser left the interview room and met with Gerhart and EPCSO command staff to determine whether there was probable cause to arrest Trull. During this meeting, Gerhart stated there was probable cause to arrest Trull for Harassment and Driving Under the Influence. Trull was ultimately arrested and prosecuted on these charges. Plaintiff was not present for the meeting. Employee key card records obtained by Defendant Colorado Bureau of Investigation ("CBI") show Plaintiff left the second floor of the EPCSO at 9:30 a.m., nineteen minutes before the meeting. Two minutes later his key card was swiped again, this time leaving the parking structure, and he did not return that day.

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When Defendant Bill Elder announced in 2013 that he was running for Sheriff of El Paso County, Plaintiff was alerted to the fact that Elder's internal affairs file was missing. Plaintiff was assigned to investigate what had happened to the missing file, and he worked with two detectives to attempt to locate the file. Once they became sure the file was gone, they attempted to find out who had stolen and/or destroyed the file, but were unable to solve the issue. Plaintiff did not support Elder in his 2014 campaign and, in the fall of 2014, Elder was elected El Paso County Sheriff.

When it became clear that Elder would win the election, Plaintiff decided to transition into the private employment sector, as Elder had made statements that Plaintiff was going to be demoted and transferred out of the Investigations Division. Plaintiff was able to rapidly build a profitable business as a private investigator and expert in digital forensics, and he was often asked to testify in court.

In...