Weise v. Colo. Springs, Civil Action No. 17-cv-02696-PAB-NYW

• Court: United States District Courts. 10th Circuit. United States District Court of Colorado
• Writing for the Court: PHILIP A. BRIMMER, Chief United States District Judge
• Citation: 421 F.Supp.3d 1019
• Parties: Leslie WEISE, Plaintiff, v. COLORADO SPRINGS, COLORADO, a municipality, Andres Pico, in his official and individual capacity, Bill Murray, in his official and individual capacity, Amy Trinidad, in her individual capacity, Wynetta Massey, in her official and individual capacity, Tom Strand, in his official and individual capacity, Helen Collins, in her official and individual capacity, Keith King, in his official and individual capacity, Jill Gaebler, in her official and individual capacity, Larry Bagley, in his official and individual capacity, Don Knight, in his official and individual capacity, and Merv Bennett, in his official and individual capacity, Defendants.
• Docket Number: Civil Action No. 17-cv-02696-PAB-NYW
• Decision Date: 30 September 2019

421 F.Supp.3d 1019

Leslie WEISE, Plaintiff,
v.
COLORADO SPRINGS, COLORADO, a municipality, Andres Pico, in his official and individual capacity, Bill Murray, in his official and individual capacity, Amy Trinidad, in her individual capacity, Wynetta Massey, in her official and individual capacity, Tom Strand, in his official and individual capacity, Helen Collins, in her official and individual capacity, Keith King, in his official and individual capacity, Jill Gaebler, in her official and individual capacity, Larry Bagley, in his official and individual capacity, Don Knight, in his official and individual capacity, and Merv Bennett, in his official and individual capacity, Defendants.

Civil Action No. 17-cv-02696-PAB-NYW

United States District Court, D. Colorado.

Signed September 30, 2019

421 F.Supp.3d 1028

David A. Lane, Andrew Joseph McNulty, Killmer Lane & Newman, LLP, Denver, CO, for Plaintiff.

Eric V. Hall, Sparks Willson P.C., Colorado Springs, CO, for Defendant.

ORDER

PHILIP A. BRIMMER, Chief United States District Judge

This matter is before the Court on defendants' Motion to Dismiss [Docket No. 49]. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.

I. BACKGROUND¹

In August 2015, plaintiff submitted a Colorado Open Records Act ("CORA") request

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for any air quality studies conducted and/or commissioned by Colorado Springs Utilities regarding emissions from the Martin Drake Power Plant. Docket No. 41 at 7, ¶ 27. After Colorado Springs refused to release the records, citing the attorney-client and work product privileges, plaintiff filed suit in the District Court for El Paso County, Colorado. Id. , ¶ 28. The District Court ruled in favor of Colorado Springs on May 5, 2016, and on June 22, 2016, plaintiff appealed the decision to the Colorado Court of Appeals. Id. at 7-8, ¶¶ 29, 31.

At some point thereafter, the Clerk's Office for the Colorado Court of Appeals mailed the parties an electronic copy of the trial court record. Id. at 8, ¶ 32. While reviewing the record in November 2016, plaintiff discovered an Air Quality Study that she had been seeking in the CORA proceedings. Id. , ¶ 33. Over the next few days, plaintiff filed several motions in the Colorado Court of Appeals requesting guidance about the disclosure of the Air Quality Study and seeking the study's immediate release. Id. at 8-9, ¶ 36. On November 16, 2016, the Colorado Court of Appeals entered an order clarifying that the Air Quality Study had been disclosed as the result of a clerical error and instructing the parties that they were not to distribute, download, retain, or disseminate the sealed material. Id. at 9, ¶ 37. Plaintiff then confirmed with the court that the court's order did not prevent her from sharing her publicly filed motions or speaking about the contents of the documents that had inadvertently been disclosed to her. Id. , ¶ 38.

Plaintiff shared two of her motions with the Colorado Springs Gazette and others via email. Id. , ¶ 39. The motions contained statements that (1) records affecting public health and safety had "been improperly withheld"; (2) Colorado Springs Utilities had told the public that it was in compliance with sulfur dioxide regulations and standards, despite being obligated to report any air quality violations to the Environmental Protection Agency; and (3) withholding the Air Quality Study was "an egregious abuse of the CORA ... laws." Id. at 9-10, ¶ 39.

On November 21, 2016, the Colorado Springs Gazette published a story about the Air Quality Study. Id. at 10, ¶ 40. Although the article did not quote from the Air Quality Study, it reported plaintiff's conclusion that "sulfur-dioxide emissions from the coal-fired Martin Drake Power Plant violated federal standards contrary to filings by Colorado Springs Utilities." Id. The article also quoted Amy Trinidad, the spokesperson for Colorado Springs Utilities, who disputed plaintiff's characterization of the Air Quality Study. Id.

On November 22, 2016, Colorado Springs filed a "Cross Motion for Order to Show Cause" requesting that plaintiff be held in contempt for violating the Colorado Court of Appeals' November 16, 2016 order. Id. at 10-11, ¶ 42. The court dismissed the motion with prejudice on February 8, 2017, id. at 11, ¶ 46, and never made a finding that plaintiff had violated a law or court order. Id. , ¶ 47.

In November and December 2016, various Colorado Springs officials made public statements concerning plaintiff's characterization of the Air Quality Study. For example, in an email dated November 30, 2016, city council member and Colorado Springs Utilities Board Chair Andres Pico told a constituent that plaintiff's statements about the Air Quality Study were "not true." Id. at 12, ¶ 49. In another email dated December 5, 2016, Mr. Pico informed a different Colorado Springs resident, "The information in the article is not accurate nor are [Ms. Weise's] allegations being stated at all true. The allegation [from Ms. Weise] is that the study proves past violations of air quality standards.

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That allegation is absolutely false." Id. , ¶ 50. Mr. Pico made similar statements in an email exchange on December 16, 2016, telling a Colorado Springs resident that what she had "read in the paper [was] not true." Id. at 13, ¶ 51. Finally, during a meeting of the Colorado Springs Utilities Board on December 19, 2016, Mr. Pico stated, "The report that the Drake Power Plant has been in violation is simply not true." Id. , ¶ 52.

On December 1, 2016, Bill Murray, another Colorado Springs city council and Utilities Board member, told a resident in an email concerning plaintiff, "You know I do not like it. However, what she did she knew was illegal." Id. at 14, ¶ 56. At a public forum the next day, Mr. Murray again stated that plaintiff's actions in speaking about the Air Quality Study were illegal. Id. , ¶ 57. Colorado Springs Utilities employee Amy Trinidad likewise told a reporter for the Colorado Springs Independent media that "Ms. Weise may have violated [the Colorado Court of Appeals] order when she public [sic] discussed documents sealed by the District Court." Id. at 15, ¶ 62.

Plaintiff is licensed to practice law in California, New York, and Pennsylvania. Id. at 16, ¶ 70. In March 2017, the Colorado Springs City Council voted to take formal action against plaintiff in all three states. Id. at 16-17, ¶ 71. At that time, Tom Strand, Bill Murray, Helen Collins, Keith King, Jill Gaebler, Andres Pico, Larry Bagley, Don Knight, and Merv Bennett were members of the city council. Id. at 17, ¶ 71.

In April 2017, Colorado Springs' City Attorney Wynetta Massey filed formal actions against plaintiff with the state bar associations of New York, California, and Pennsylvania. Id. at 17, ¶¶ 72-75. The complaints stated that plaintiff had violated one or more court orders and had unlawfully disclosed government records. Id. , ¶ 72. Plaintiff was forced to obtain counsel in multiple states to defend against the bar complaints, even though all three were ultimately dismissed in her favor. Id. at 19, ¶¶ 85-87. After the complaints were dismissed, Colorado Springs City Council member Tom Strand stated publicly that plaintiff had engaged in unethical conduct by filing her motion with the Colorado Court of Appeals and making statements regarding the Martin Drake Power Plant. Id. , ¶ 87.

As a result of defendants' conduct, plaintiff has had to take significant time away from her business consulting firm, has suffered damages to her personal and professional reputation, and has lost at least one professional client opportunity. Id. at 20, ¶ 88.

Plaintiff filed this lawsuit on November 13, 2017. Docket No. 1. In her operative complaint, plaintiff asserts First Amendment free speech and retaliation claims against Colorado Springs and defendants Massey, Strand, Murray, Collins, King, Gaebler, Pico, Bagley, Knight, and Bennett in their individual and official capacities; a Fourteenth Amendment stigma-plus claim against all defendants; state-law defamation claims against defendants Pico, Murray, Trinidad, and Massey; a state-law claim for intentional infliction of emotional distress against defendants Pico, Murray, Trinidad, and Massey; and a state-law abuse of process claim against defendants Massey, Strand, Murray, Collins, King, Gaebler, Pico, Bagley, Knight, and Bennett. See Docket No. 41 at 20-28. On June 5, 2018, defendants moved to dismiss plaintiff's second amended complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), asserting various governmental immunity defenses and failure to state a claim. Docket No. 49. Plaintiff filed a response to the motion on July 10, 2018, Docket No. 54, to

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which defendants replied on August 7, 2018. Docket No. 58.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must allege enough factual matter that, taken as true, makes the plaintiff's "claim to relief ... plausible on its face." Khalik v. United Air Lines , 671 F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v....