West-Helmle v. Denver Distrct Attorneys Office, Civil Action 19-cv-02304-RM-STV

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtScott T. Varholak United States Magistrate Judge.
Docket NumberCivil Action 19-cv-02304-RM-STV
Decision Date03 May 2021



Civil Action No. 19-cv-02304-RM-STV

United States District Court, D. Colorado

May 3, 2021


Scott T. Varholak United States Magistrate Judge.

This matter is before the Court on the following four motions to dismiss: (1) the Motion to Dismiss Plaintiff's Third Amended Complaint [ECF 108] from DA Defendants, filed by the Denver District Attorney's Office, Christine Washburn, Dustin Heard, and Jessie Dubois (the “DA Motion”) [#109]; (2) the Motion to Dismiss Third Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), filed by the Denver County Judiciary (the “DCJ Motion”) [#111]; (3) Defendants' Partial Motion to Dismiss Plaintiff's Third Amended Complaint, filed by the University of Denver, Viva Moffat, and Alexi Freeman (the “DU Motion”) [#113]; and (4) Defendant Professor Thomas Russell's Motion to Dismiss Third Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) (the “Russell Motion”) [#114] (collectively, the “Motions”). The Motions have been referred to this Court. [##110, 115] This Court has carefully considered the Motions and related briefing, the case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motions. For the following reasons, the Court respectfully RECOMMENDS that the DA's Office's Motion, the DU Motion and the Russell Motion be GRANTED and the DCJ Motion be GRANTED in part and DENIED in part.


Plaintiff Ethan West-Helmle began attending the University of Denver Sturm College of Law (“DU”) in May 2015 and anticipated graduating with his Juris Doctorate degree in December 2017. [#108 at ¶ 11] On December 31, 2016, Plaintiff suffered an ischemic stroke after a food poisoning episode, causing him to tear his carotid artery. [Id. at ¶ 12] Plaintiff underwent emergency surgery, but extensive brain trauma has left Plaintiff with lasting impairments. [Id. at ¶ 13]

In July 2017, Plaintiff spoke with Defendant Alexi Freeman, a DU professor, about his stroke and his unusual, antisocial feelings while participating in his summer externship. [Id. at ¶¶ 15-16] Professor Freeman encouraged Plaintiff to attempt to overcome those barriers at his fall externship with the Denver District Attorney's (“DA's”) Office. [Id. at ¶ 16] When Plaintiff interviewed with the DA's Office, Plaintiff informed the interviewers that he had suffered a stroke, and the parties agreed that if there were any issues, they could work together to find a solution. [Id. at ¶¶ 17, 19]

Plaintiff began his externship at the DA's Office in August 2017.[2] [Id. at ¶ 20] The staff that Plaintiff had interviewed with were no longer extern supervisors. [Id.] Plaintiff apparently worked primarily with DA's Office employees Dustin Heard, Christine Washburn, and Jessie Dubois (the “DA's Office Defendants”). [See generally #108] The externs were assigned to work in Courtroom 4C, where Magistrate Melissa Trollinger Annis presided. [Id. at ¶¶ 9, 21-23]

On September 4, 2017, Plaintiff was the notetaker for the afternoon session in Courtroom 4C, and was working with Ms. Dubois. [Id. at ¶ 23] Ms. Dubois made fun of Plaintiff's typing abilities in front of another extern and two court clerks. [Id. at ¶ 24] Plaintiff later informed Ms. Dubois that he has struggled with typing since his stroke. [Id. at ¶ 25]

On September 21, 2017, Mr. Heard sent a memorandum to the externs saying that none of them were performing well. [Id. at ¶ 26] This memorandum was apparently sent in response to a communication from Magistrate Annis to Ms. Washburn in which Magistrate Annis asked Ms. Washburn to fix problems with the externs, but also asked Ms. Washburn not to share with the externs the substance of Magistrate Annis' complaints. [Id. at ¶ 27] Magistrate Annis had frequently complained about the externs to Ms. Washburn. [Id. at ¶ 29]

Later that day, Ms. Washburn called a meeting with the externs. [Id.] Ms. Washburn asked the externs to tell “their side of the story.” [Id. (quotation omitted)] Plaintiff informed Ms. Washburn that Mr. Heard had been disrespectful to the externs when he wrote a memorandum “fixing” all of the extern issues. [Id.] A few days later, Ms. Washburn submitted a mid-semester review for Plaintiff that appeared to be largely copied from another extern's review, and implied that Plaintiff would not be approved to conduct trials and motions hearings. [Id. at ¶ 32]

On September 28, 2017, Ms. Washburn informed Magistrate Annis that Plaintiff was disabled and dissatisfied. [Id. at ¶ 35] Ms. Washburn told Magistrate Annis that “they should accommodate [Plaintiff] or can affirmatively fire him.” [Id.] On several occasions, during meetings between Mr. Heard and Magistrate Annis's chambers staff, Mr. Heard complained about Plaintiff's incompetency. [Id. at ¶¶ 36-37]

On September 29, 2017, Plaintiff offered a plea deal to a defendant. [Id. at ¶ 38] The defendant accepted the offer. [Id.] Mr. Heard reviewed the defendant's file and then falsely accused Plaintiff of using an incorrect Department of Motor Vehicles (“DMV”) report to formulate the plea offer. [Id.] Mr. Heard directed the defendant to go to Mr. Heard's trial division where Mr. Heard ultimately dismissed the case. [Id.] “On Information and belief, [Mr. Heard's] undermining of [Plaintiff's] work was done at the direction of [Ms. Washburn].” [Id. at ¶ 39]

On October 2, 2017, Plaintiff met with Mr. Heard and another DA's Office employee for his mid-semester review. [Id. at ¶ 42] Mr. Heard informed Plaintiff that he would be held back from performing motions hearings because Plaintiff had reached a plea deal with a defendant despite the fact that the defendant's name was not on the DMV report.[3] [Id.] Plaintiff states this reason was “a blatant lie.” [Id.] According to Plaintiff, all other similarly situated externs were allowed to conduct motions hearings. [Id. at ¶ 43]

On October 13, 2017, Plaintiff asked Magistrate Annis a question about a hearing after it had concluded, which sent Magistrate Annis “into an outrage.” [Id. at ¶ 46] Ms. Dubois again made fun of Plaintiff's typing abilities, this time in front of Magistrate Annis, another extern, and court clerks. [Id. at ¶ 47] Later that day, Magistrate Annis inundated Ms. Washburn and Mr. Heard with negative emails about Plaintiff. [Id. at ¶ 48] Magistrate Annis told Ms. Washburn that Plaintiff was incompetent and too cumbersome to accommodate and she therefore banned Plaintiff from her courtroom.[4] [Id. at ¶ 49] When Mr. Heard asked Magistrate Annis what he should tell Plaintiff, Magistrate Annis said to tell Plaintiff that the court has rules. [Id. at ¶¶ 50-51]

Plaintiff alleges several derogatory or unprofessional comments made by the DA's Office staff in the weeks that followed. On October 24, 2017, Ms. Dubois, with Mr. Heard present, informed Plaintiff that if he does not give the police great deference, he is not the right fit for the DA's Office. [Id. at ¶ 66] Two days later, on October 26, 2017, Plaintiff noticed two unprofessional and hurtful comments that Mr. Heard had written on the docket. [Id. at ¶ 67] That same day, Mr. Heard fired Plaintiff. [Id. at ¶¶ 68-69] On December 2, 2017, Mr. Heard submitted a final review of Plaintiff, recommending a failing grade and misrepresenting Plaintiff's performance.[5] [Id. at ¶ 78]

Various staff members from the DA's Office, including Ms. Dubois, promised to serve as a reference for Plaintiff when he sought other opportunities. [Id. at ¶ 56] Plaintiff believes that in actuality these staff members informed Plaintiff's potential employers of his disability and recommended that Plaintiff not be hired. [Id. at ¶¶ 57-58] Similarly, Plaintiff believes that Ms. Washburn and Mr. Heard contacted all district attorney's offices in the area in order to deter Plaintiff from finding a similar position in a different county.[6][Id. at ¶ 73]

On December 18, 2017, Plaintiff met with Professor Moffat. [Id. at ¶ 79] Professor Moffat stated that there was nothing she could do about Plaintiff's costs for the externship credit with the DA's Office. [Id.] A few days later, Plaintiff emailed Professor Freeman and another DU staff member, asking if they could accommodate him, rather than give him a failing grade for the externship with the DA's Office. [Id. at ¶ 80] Professor Freeman responded, directing Plaintiff to complete two unfinished assignments in order to put him in the best position to pass, though Plaintiff believes she already had plans to fail Plaintiff. [Id. at ¶ 81]

On January 6, 2017, Professor Freeman imposed Plaintiff's failing grade, stating that she was unable to pass Plaintiff because she needed to maintain a positive relationship with the DA's Office. [Id. at ¶ 84] According to DU's externship handbook, a failing grade is not supposed to affect a student's grade point average (“GPA”). [Id. at ¶ 83] Nonetheless, Professors Moffat and Freeman instructed the DU Registrar Administrator to factor Plaintiff's failing grade into his GPA. [Id.] The Registrar Administrator complied with this request. [Id.] Later that month, Plaintiff was hospitalized after suffering a double pulmonary embolism. [Id. at ¶ 87]

Plaintiff appealed the cost of his externship to DU's Chancellor's Office, but Professor Moffat influenced the decision to reject Plaintiff's appeal without consideration. [Id. at ¶ 89] Plaintiff also appealed his failing grade with the law school administration. [Id. at ¶ 90] Defendant Professor Thomas Russell, the chairman of the Examinations, Standing, and Readmission Committee, did not speak with Plaintiff. [Id. at ¶¶ 90, 93] Professor Russell took considerable...

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