Gabriel v. El Paso Combined Courts

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Daniel D. Domenico

Civil Action No. 1:19-cv-02248-DDD-KMT

VINCENT GABRIEL,

Plaintiff, v.

EL PASO COMBINED COURTS, DAVID LEE SHAKES, individually and in his official capacity as Judge of El Paso Combined Courts, GWEN PRATOR, individually and as employee of David Shakes, DANIEL MAY, individually and in his official capacity as District Attorney, DAVID GUEST, individually and as an employee, JOHN PARCELL, as an employee, BECCA KINIKIN, as an employee, and ADAM BAILEY, individually and as an employee,

Defendants.

ORDER

Plaintiff Vincent Gabriel, proceeding pro se, filed this action un- der 42 U.S.C. § 1983 seeking damages for alleged violations of his First, Fifth, Eighth, Ninth, and Fourteenth Amendment rights. Before the Court are Mr. Gabriel’s objections to an order by Magistrate Judge Kath- leen M. Tafoya, to whom the Court referred three non-dispositive mo- tions. (Mot. to Appoint Counsel, Doc. 4; Mot. for Restraining Order, Doc. 17; Defs.’ Mot. to Stay, Doc. 21; Order, Doc. 23; Objection, Doc. 24.1) The

1 This filing is styled “Rule 59(e) Motion (Manifest Injustice). An Appeal to District Judge Daniel Domenico to Intervene . . . .” Rule 59(e), Objection also seeks an order to prevent Defendants from engaging in certain harassing conduct and further calls for Magistrate Judge Tafoya to recuse herself. (See also Notice re Objection, Doc. 26; Exhibits in Sup- port, Doc. 27.) OBJECTIONS Under Fed. R. Civ. P. 72(a), where objection has been made to an order of a magistrate judge on a non-dispositive motion, a district judge can modify or set aside any portion of that order found to be clearly er- roneous or contrary to law. Ariza v. U.S. W. Commc’ns, Inc., 167 F.R.D. 131, 133 (D. Colo. 1996). District courts must affirm unless “on the en- tire evidence [one] is left with the definite and firm conviction that a mistake has been committed.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). A document, like the one before the Court, filed pro se is “to be liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Williams v. Klien, 20 F. Supp. 3d 1171, 1173 (D. Colo. 2014) (construing “pleadings and other filings more liber- ally and [holding] them to a less stringent standard” than filings by law- yers). A. Motion to Stay The Complaint seeks damages arising out of Defendants’ failure to expunge Mr. Gabriel’s arrest and criminal records pursuant to his

governing motions to amend a judgment, is inapplicable because no judgment has issued in this case. A judgment is “a court’s final determi- nation of the rights and obligations of the parties in a case.” Judgment, Black’s Law Dictionary (7th ed. 1999). The Court therefore construes the filing as objections to the order issued by the magistrate judge on the motions referred to her. petition. On September 12, 2019, Defendants Prator, May, Guest, Per- cell,2 Kinkin, and Bailey filed a motion to dismiss on grounds of qualified and prosecutorial immunity. Defendants El Paso Combined Courts and Judge Shakes were granted an extension of time through October 24, 2019, to answer or otherwise respond to the Complaint, but they antici- pate also filing a dispositive motion and asserting immunity. Weighing the factors set forth in String Cheese Incident, LLC v. Stylus Shows, Inc., No. 1:02-CV-01934-LTB-PA, 2006 WL 894955, at *2 (D. Colo. Mar. 30, 2006), Magistrate Judge Tafoya found that a stay of discovery is appro- priate. Mr. Gabriel doesn’t object to the propriety of the stay. He instead opposes permitting the El Paso Combined Courts and Judge Shakes ad- ditional time to respond to the Complaint (Docs. 13, 15), which he sees as “42-days of time extension giving the Defendants a total of over 179- days without any questions whatsoever” that “inexcusably exemplifies a manifest injustice.” (Objection ¶ 1.) The Court is uncertain how Mr. Ga- briel reached these figures, but these Defendants will have responded to the Complaint within seventy-six days of the filing of this case.3 Given the scope of the constitutional provisions that Mr. Gabriel alleges have been violated, this amount of time is reasonable; no clear mistake was made by the magistrate judge. This objection is OVERRULED.

2 Although the Complaint identifies this individual as “John Par- cell,” Defendants represent, on information and belief, that the correct person is “John Percell.” (Doc. 20, at n.1.) 3 The record does not reflect that these, or any other, Defendants were served with the Complaint. There are only forty-five days between the El Paso Combined Courts’ and Judge Shakes’s first appearance (in their motion for an extension and the time) and when their response to the Complaint is due. B. Motion to Appoint Counsel Mr. Gabriel’s motion for the appointment of counsel said only that the Court should do so “given the complexity of this case and the fact that [he] cannot afford counsel.” (Doc. 4, at 1.) As Magistrate Judge Tafoya recognized, the determination of whether to appoint counsel in a civil case is left to the sound discretion of the district court. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). Relevant here, Mr. Ga- briel is only eligible for pro bono counsel if he “demonstrat[es] limited financial means.” Local Atty R. 15(e)(1)(C). By affidavit, Mr. Gabriel now adds only that as “a full-time student, [he has] a very limited income.” (Doc. 24-1 ¶ 6.) This conclusion does not demonstrate financial need or supply the Court with more information than was before the magistrate judge. It is not a reason to disturb Magistrate Judge Tafoya’s order. This objection is OVERRULED. C. Motion for Restraining Order Mr. Gabriel’s “Motion for a Restraining Order” cites two legal pro- visions: Colo. Rev. Stat. § 18-3-602 (“Stalking”) and Fed. R. Civ. P. 65(b) (“Temporary Restraining Order”). Magistrate Judge Tafoya analyzed the motion under Rule 65 and found that Mr. Gabriel had not complied with the local conferral rules, had not shown that he could not be com- pensated by money damages, and had failed to supply an affidavit clearly showing immediate or irreparable injury or loss. She therefore denied the motion, and the Court agrees with that ruling based on the materials then available. Mr. Gabriel has now supplied the Court with two affidavits. The first (Doc. 24-1) generally affirms the allegations in the Complaint, that Mr. Gabriel was falsely (because of racial motivation) charged with shoplifting and prostitution, he was convinced by Defendants to enter into a deferred prosecution agreement, the case(s) against him were dis- missed, he admittedly did not complete the aftercare program necessary for his record to be expunged per the terms of the deferred prosecution agreement, and the El Paso court did not expunge his record. As Magis- trate Judge Tafoya correctly set out, two of the essential elements re- quired to obtain preliminary injunctive relief are (1) irreparable harm and (2) a likelihood of success on the merits. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009). The first affidavit undermines both necessary showings. These circumstances are in the past. Should the allegations and evidence sup- port a viable claim, none of them demonstrate irreparable harm that cannot be cured by damages.4 But more detrimental to his position is his sworn admission that he did not complete the aftercare program. Each of his claims seeks damages for failure to expunge his record (and re- lated conduct).5 This raises serious concerns as to the likelihood of his success on the merits.6 In that capacity, he has shown no entitlement to preliminary relief, and his objection is OVERRULED.

4 For example, Mr. Gabriel believes the failure to expunge his rec- ord has caused him emotional distress. Such compensatory damages are awardable for claims brought pursuant to 42 U.S.C. § 1983. Jolivet v. Deland, 966 F.2d 573, 577 (10th Cir. 1992). 5 (See Compl., Doc. 1 ¶¶ 25, 30, 33, 36, 41, 50, 54, 57.) 6 Mr. Gabriel has always maintained that there was no need for him to complete the aftercare program because of his “strong perfor- mance at the veteran’s court.” (Compl., Doc. 1 ¶ 16.) But he acknowl- edges, in his affidavit, that completion of that program was a “term of [his] Deferred Prosecution Agreement.” (Doc. 24-1 ¶ 10.) He therefore agreed that expunction of his record would depend upon him finishing the aftercare program. ADDITIONAL REQUESTS D. Motion to Prevent Harassing Conduct

Mr. Gabriel filed a second affidavit in support of the Objection that speaks to more current events. (Doc. 26.) According to Mr. Gabriel, “since filing the motion against manifest injustice and pointing out the oppressive conduct of Defendants, [he has] experienced increased trau- matic activities and harassments.” (Id. ¶ 1.) He alleges, upon infor- mation and belief, that “Defendants are working hard with private indi- viduals and law enforcement teams to try and post false witnesses and create a setup to smear [him] with what might look like a crime to fulfill their purpose to retain those unwarranted records.” (Id. ¶ 9.) Near as the Court can tell, Mr. Gabriel believes Defendants, in Colorado, are currently harassing him in Massachusetts, by orchestrating the follow- ing events he describes:  Women with shocking boldness have been posted by my door to force themselves on me so that they can incriminate me. I am not sure how much they have been paid but I pray that the court will not continue to overlook this im- portant safety request: “provide the Plaintiff with a serious protective order as he seeks jus- tice in his matter.”

 On 10/03/2019 at about 8:30 PM when I was off loading my grocery items, a young lady undid her jacket and placed it on the door that I had to clear before entering my residence. I stood at a distance and refused to participate in her self- talk and invitations until she left the premises.

 On 10/05/2019 at about 3:00 PM a stranger ag- gressively walked towards me in the parking lot to start a conversation. As I tried to avoid this man, he kept on following me and could have started a fight. This incident has happened mul- tiplicity of times and has resulted to restrictions to my normal lifestyle including restrictions to the desire to go places especially at night. My telephone line is always obstructed with pro- gramed intrusions and interruptions.

 This morning at about 11 :00 AM while working on my “Global Direct Investment paper,” a stranger knocked on my door insisting and in- tending to come in claiming to be an electrician. This was the same reason why I called 911 on 7/11/2019 because the landlord did not send this individual.

These allegations are not related to the conduct underlying this lawsuit and appear to accuse Defendants of either criminal stalking under Colo. Rev. Stat. § 18-3-602 (as referenced in the motion for restraining order), interfering with this lawsuit, or other general harassing behavior. To that extent, the Court construes the Objection as a motion for sanctions or protective order pursuant to the Court’s inherent authority. Even if a court lacks subject-matter jurisdiction over the substantive merits of a case, it retains the inherent authority to issue orders on matters collateral to the merits and to conduct sanction proceedings and to impose any sanction for abusive conduct for which sanctions are authorized by the federal rules of procedure or federal statutes, including awarding costs or attorney fees, imposing punishment for criminal contempt, and is- suing sanctions. Lundahl v. Halabi, 600 F. App’x 596, 605–06 (10th Cir. 2014) (cit- ing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395–96 (1990); Willy v. Coastal Corp., 503 U.S. 131, 136–37 (1992)); see also Sieverding v. Colo. Bar Ass’n, 469 F.3d 1340, 1343 (10th Cir. 2006) (“Federal courts have the inherent power to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circum- stances.”). But even so construed, the motion must be denied. “Inher- ent powers are the exception, not the rule, and their assertion requires special justification in each case.” Chambers v. NASCO, Inc., 501 U.S. 32, 64 (1991). Taking the contents of the affidavit as true—that these persons have been approaching him in an inappropriate manner—Mr. Gabriel offers nothing but speculation that Defendants have orches- trated these encounters. The motion is therefore DENIED. E. Call for Recusal of Magistrate Judge Tafoya Finally, Mr. Gabriel “calls upon the Magistrate Kathleen Tafoya to recuse herself from the case.” (Doc. 24 ¶ 6.) This Court is not aware of any legitimate reason such recusal would be required, but in any event, rejects the means by which Plaintiff has challenged Magistrate Judge Tafoya’s impartiality. The more appropriate procedure for challenging the impartiality of a judge is through a motion for recusal pursuant to 28 U.S.C. § 455. See, eg., Kinnear–Weed Corp. v. Humble Oil & Refining Co., 441 F.2d 631 (5th Cir.1971) (“Congress made it expressly plain that it placed in the justice or judge the responsibility for making the deter- mination ‘in his opinion’ that he should disqualify himself.”); see also Clay v. Brown, Hopkins & Stambaugh, 892 F. Supp. 11, 13 (D.D.C. 1995) (discussing that the “highly personal decision” to recuse should be made, in the first instance, by the judge being accused of bias). No such motion has been filed, nor has Mr. Gabriel filed any support for such a motion. See Estate of Bishop v. Equinox Int’l Corp., 256 F.3d 1050, 1058 (10th Cir. 2001) (“Factors that do not merit disqualification include: rumor, speculation, beliefs, conclusions, or other non-factual matters . . . [and] prior rulings that were adverse to the moving party.” (emphasis in orig- inal)). There is nothing currently for the Court to decide on this matter. CONCLUSION

For the foregoing reasons, the Objections (Doc. 24) are OVERRULED. To the extent Plaintiff seeks a protective order or sanc- tions based on the conduct cited in Document 26, the motion is DENIED.

DATED: October 15, 2019. BY THE COURT: Wes United States District Judge