Sgaggio v. Diaz

• Decision Date: 19 May 2023
• Docket Number: Civil Action 22-cv-02043-PAB-MDB
• Parties: DELBERT SGAGGIO, Plaintiff, v. MARIO DIAZ, in his personal and professional capacity, and THE CITY OF PUEBLO, a municipal corporation, Defendants.
• Court: U.S. District Court — District of Colorado

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DELBERT SGAGGIO, Plaintiff, v. MARIO DIAZ, in his personal and professional capacity, and THE CITY OF PUEBLO, a municipal corporation, Defendants.

Civil Action No. 22-cv-02043-PAB-MDB

United States District Court, D. Colorado

May 19, 2023

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Maritza Dominguez Braswell United States Magistrate Judge

This matter is before the Court on Defendant Mario Diaz [“Defendant Diaz”] and the City of Pueblo's [“the City,” collectively “Defendants”] Motion to Dismiss. ([“Motion”], Doc. No. 12.) Plaintiff filed a response to the Motion ([“Response”], Doc. No 18), to which Defendants have replied. ([“Reply”], Doc. No. 23.) After considering the Motion, briefing, and relevant case law, the Court respectfully RECOMMENDS that the Motion to Dismiss is GRANTED.

SUMMARY FOR PRO SE PLAINTIFF

The Court is recommending that Defendant's Motion to Dismiss be granted and that all of your claims be dismissed. The Court's decision is set forth in its entirety below, but in sum, the allegations in the Complaint do not support a claim that Defendant Diaz violated your First Amendment speech or religion rights, nor your rights under the Colorado Constitution.

Additionally, the Complaint does not identify any particular policy, custom, or procedure that would give rise to a claim against Defendant, City of Pueblo. As set forth in more detail below, you have fourteen days to object to this recommendation.

STATEMENT OF THE CASE^[1]

Plaintiff Delbert Elmer Sgaggio brings this action against Defendants Mario Diaz and the City of Pueblo, alleging First Amendment violations in connection with an incident that occurred in August 2020. (Doc. No. 1.) Plaintiff describes himself as a “spiritual guide in Southern Colorado, and a [c]ofounder of an [i]ndigenous [h]ouse of worship. (Id. at 2-3.) Plaintiff, and his father-in-law Daniel Aguilera, grow a “Spiritual Sacrament”-ostensibly referring to marijuana. (Id.)

According to the Complaint, on August 12, 2020, Plaintiff was with Mr Aguilera when Mr. Aguilera received a call from his wife Crystal Casias. Ms. Casias informed Mr. Aguilera that the Pueblo Police Department was in Mr. Aguilera's backyard. (Id. at 2-4.) According to Plaintiff, Defendant Diaz “[gave] Crystal 24 hours to move marijuana plants that [were] growing in the backyard.” (Id. at 4.) Plaintiff alleges that Crystal had her phone on speaker and that the telephonic communications between Plaintiff and Defendant Diaz were captured “on the Code Enforcement officers [b]ody [c]am.” (Id.) Plaintiff alleges the following colloquy:^[2]

The first question I asked detective Mario Diaz is “What is the infraction?”

Mario Diaz refuses to answer the question. Mario Diaz states the following “I've already discussed everything with Mrs. Casias.”^[3]

Crystal then speaks out “Its [sic] because they are not in an enclosed space.”

You can then here [sic] me on speaker phone “They are not in an enclosed space?”

Mario Diaz “That is correct sir”

I reply to Defendant Diaz “well there's a lock on the gate, and you know it's protected by the Colorado Constitution right?”

Mario Diaz “it is not sir. We are given [sic] [M]iss Casias an opportunity, to correct the issue if not, we will come back and issue some tickets. And we will destroy the plants. So I'm thinking we are being pretty fair as to not taking the plants right now. And not issuing a citation. So we will be back about this time tomorrow. And if they're not gone. And you haven't complied, and then we, can moved some other way.”

I then ask Mario Diaz “OK did you go to her door and knock on it first? Or did you go and step on the property and look in the back?”

Mario Diaz refuses to answer the question. He says “have a nice day” and then gives the phone back to Crystal. At this point you can tell on the body Cam video that Mario Diaz is pissed off. Crystal continues to converse with the, [sic] three Pueblo government officials in her backyard. You can then hear me on the speaker again loudly stating the following “Tell them you need to see the search warrant! Do they have a search warrant?”

Crystal “Do you have a search warrant?”

Mario Diaz “No ma'am. You voluntarily took us back here, so we were able to examine your grow. If I needed a search warrant for that, I could have got one. Yes absolutely. And I would've took all your plants, and giving you a citation. We are not doing that.”

I loudly interrupt on speaker. ‘you don't have the right to take everyone's plants just because you have a search warrant! Are you with the county or are you with the city?'

Crystal then Ask [sic] Defendant Diaz. OK I just want to know, is there any way I can file an appeal against this?'

Mario Diaz replies. ‘What appeal? Ma'am it's city ordinance.'

I once again interject with my big mouth. ‘It doesn't matter it's due process. Do you understand due process [s]ir? Do you understand the 5th and the 14th Amendment [s]ir? That's what I'm asking. We can go to federal court real quick right here.'

The body camera video then shows Mario Diaz hanging up the phone. Crystal ‘Can I have my phone back'

Mario Diaz gives the phone back, in a very cocky fashion. ‘If you have any more questions let us know. I'm not here to argue with your boyfriend over the phone. OK Tomorrow ma'am about this time. You got the time. Alright tomorrow 3 o clock or Mrs. Casias will be receiving a citation.

Crystal can be heard being distraught in the background.

(Id. at 4-8.) Plaintiff includes a picture of Defendant Diaz and claims there is “a big problem in America today. The [d]ipshit pictured above, is that problem.” (Id. at 8.) Plaintiff goes on to make various allegations, including that “the plants were protected under the Colorado constitution,” that there were due process violations against Mr. Aguilera and his wife, and that the landlord-who was sued by Mr. Aguilera in small claims court-was the one to call the police, therefore “this was a retaliation.” (Id. at 8-9.) Plaintiff then alleges what amounts to the crux of his complaint against Defendants:

My back and forth with defendant Mario Diaz is a matter of public concern. We're dealing with a public servant who is lying out of his ass. He has absolutely zero clue as to what, due process is, yet he holds the rank of detective. This is utterly disgusting. The video shows a ridiculous abuse of power, and no respect for the Colorado Constitution. Defendant Diaz does not agree with my viewpoint, he stopped my speech by hanging up the phone. This is stopping my message, my vibrations, and my sincerely held spiritual beliefs of defending members of my flock. Crystal is also a member of our Indigenous house of worship.

(Id. at 9.) Plaintiff alleges that the “broadcasting of [his] speech from Crystal[']s phone was speech regarding: Due Process, the 5th and 14th Amendment and the Colorado Constitution. This is protected speech under the First Amendment.” (Id. at 11-12.) He claims that “Defendant Diaz responded to my First Amendment activity with retaliation, by hanging up Crystal[']s phone and stopping my constitutionally protected activity…. Defendant Diaz's retaliatory actions and hanging up crystals [sic] phone, was meant to punish me for exercising my First Amendment.” (Id. at 13-14.)

Plaintiff brings three claims pursuant to 42 U.S.C. § 1983: one for the alleged violation of the freedom of speech guarantee, one for alleged retaliation in connection with the exercise of first amendment rights, and one for the violation of the free exercise of religion guarantee. (See Id. at 11-17.) Plaintiff also brings a Colorado constitutional claim against Defendant Diaz under C.R.S. § 13-21-131, which authorizes a civil action for the deprivation of constitutional rights by peace officers. (Id.)

Defendants have moved to dismiss the Complaint. (Doc. No. 12.) That motion has been referred to the undersigned for a report and recommendation. (Doc. No. 13.) In their Motion, Defendants argue that hanging up the phone does not amount to a law that abridges freedom of speech, nor does it amount to the type of conduct that is considered retaliatory, such as arresting, fining, or harassing an individual based on what they say. (Doc. No. 12 at 5-6.) Defendants argue, therefore, that “Plaintiff has failed to plausibly allege a violation of free speech under the First Amendment and, thus, this claim should be dismissed.” (Id. at 6.) Defendants parrot this argument in rebuffing Plaintiff's Colorado constitution claim. (Id. at 12.) Defendants also argue that Plaintiff has not set forth a valid claim for retaliation because he does not plausibly allege “that Defendant Diaz's action caused Plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in protected activity, nor [does he allege] that Defendant Diaz's actions were substantially motivated as a response to Plaintiff's right to free speech.” (Id. at 9.) According to Defendants, the free exercise claim also fails because even if Plaintiff could prove that defending his father-in-law was part of Plaintiff's sincerely held religious beliefs, the act of hanging up the phone does not constitute an impermissible burden on Plaintiff's religious freedoms. (Id. at 11-12.) Finally, Defendants argue that because there is no underlying constitutional violation, the Monell claim against the City fails, and Defendant Diaz is entitled to qualified immunity. (Id. at 12-15.)

In response to Defendants' motion to dismiss, Plaintiff cites various cases illustrating the suppression of free speech. (Doc. No. 20 at 3-5.) Plaintiff also makes several arguments in support of his claims, insisting that his speech was constitutionally protected, that hanging up the phone stopped his speech and that he suffered...