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    DEFENDANT STANLEY’S REPLY IN SUPPORT OF HER MOTION TO DISMISS

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    Barry Morphew, Plaintiff, v. Chaffee County, Colorado, et al.

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    DEFENDANT STANLEY’S REPLY IN SUPPORT OF HER MOTION TO DISMISS

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    37 views5 pages

    Barry Morphew, Plaintiff, v. Chaffee County, Colorado, Et Al.

    Uploaded by

    Matt Blac inc.
    DEFENDANT STANLEY’S REPLY IN SUPPORT OF HER MOTION TO DISMISS

    Copyright:

    Public Domain
    Download as PDF, TXT or read online from Scribd
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    of 5

    Case No.

    1:23-cv-01108-DDD-JPO Document 154 filed 05/03/24 USDC Colorado pg 1 of 5

    IN THE UNITED STATES DISTRICT COURT


    FOR THE DISTRICT OF COLORADO

    Civil Action No. 23-cv-01108-DDD-JPO

    BARRY MORPHEW,

    Plaintiff,

    v.

    Chaffee County, Colorado,


    Board of County Commissioners of Chaffee County, Colorado,
    Chaffee County Sheriff’s Department,
    District Attorney Linda Stanley, in her individual and official capacity,
    Chaffee County Sheriff John Spezze, in his individual and official capacity,
    Chaffee County Undersheriff Andrew Rohrich,
    Eleventh Judicial District Attorney’s Office Investigator Alex Walker,
    Deputy District Attorney Jeffrey Lindsey,
    Deputy District Attorney Mark Hurlbert,
    Chaffee County Sheriff’s Detective Robin Burgess,
    Chaffee County Sheriff’s Deputy Randy Carricato,
    Chaffee County Sheriff’s Deputy Scott Himschoot,
    Chaffee County Sheriff’s Sergeant William Plackner,
    Colorado Bureau of Investigation Director John Camper,
    Colorado Bureau of Investigation Agent Joseph Cahill,
    Colorado Bureau of Investigation Agent Megan Duge,
    Colorado Bureau of Investigation Agent Caitlin Rogers,
    Colorado Bureau of Investigation Agent Derek Graham,
    Colorado Bureau of Investigation Agent Kevin Koback,
    Colorado Bureau of Investigation Agent Kirby Lewis,
    Colorado Bureau of Investigations Deputy Director of Investigations Chris Schaefer,

    Defendants.

    DEFENDANT STANLEY’S REPLY IN SUPPORT OF HER MOTION TO DISMISS


    [Doc. 87]

    Defendant District Attorney Linda Stanley replies to the plaintiff’s response [Doc. 129]

    to her motion to dismiss [Doc. 87]:


    Case No. 1:23-cv-01108-DDD-JPO Document 154 filed 05/03/24 USDC Colorado pg 2 of 5

    A. Eleventh Amendment bars claims against the District Attorney in official capacity.

    Plaintiff concedes DA Stanley’s motion with respect to Eleventh Amendment immunity

    with respect to damages, but argues that it does not bar his claims for injunctive and prospective

    relief. Resp. p. 5 [Doc. 129]. The undersigned conducted a word search on the complaint and

    was not able to find any claim for prospective or injunctive relief against the District Attorney.

    The word “injunctive” appears only in reference to her request for relief against the Sheriff’s

    Office.

    B. District Attorney Stanley is Entitled to Absolute Prosecutorial Immunity.

    Plaintiff begins this section of her response with what amounts to a policy argument

    against prosecutorial immunity, but her argument is not consonant with the U.S. Supreme

    Court’s decision to apply the doctrine in section § 1983 litigation. Resp. p. 6 [Doc. 129]. See

    Imbler v. Pachtman, 424 U.S. 409, 424-429 (1976). In Imbler, the Court provided an extensive

    discussion of its rationale, beginning with the observation, “If a prosecutor had only a qualified

    immunity, the threat of 1983 suits would undermine performance of his duties no less than would

    the threat of common-law suits for malicious prosecution. . . .” ending pages later with, “These

    checks undermine the argument that the imposition of civil liability is the only way to insure that

    prosecutors are mindful of the constitutional rights of persons accused of crime.” Imbler, 424

    U.S. at 424-429.

    Plaintiff argues that absolute immunity “is often unsolvable until the summary judgment

    stage” (Resp. p. 6 [Doc. 129]), but this assertion conflicts with the Supreme Court’s rationale for

    adoption of this level of immunity explained in Imbler, 424 U.S. at 424-429. In addition,

    plaintiff’s pronouncement is not a supported approach, as evidenced in recent Tenth Circuit

    2
    Case No. 1:23-cv-01108-DDD-JPO Document 154 filed 05/03/24 USDC Colorado pg 3 of 5

    decisions. See, e.g., Chilcoat v. San Juan Cnty., 41 F.4th 1196, 1203 (10th Cir. 2022), cert. denied

    sub nom. San Juan Cnty., Utah v. Chilcoat, 143 S. Ct. 1748 (2023); Daniels v. USAO UT Dist,

    No. 23-4049, 2023 WL 4115986, at *2 (10th Cir. June 22, 2023); Clark v. Murch, No. 22-1330,

    2023 WL 5012096, at *5 (10th Cir. Aug. 7, 2023); DeLia v. U.S. Dep’t of Just., No. 21-5047,

    2021 WL 4258758, at *1 (10th Cir. Sept. 20, 2021).

    Plaintiff’s allegations against DA Stanley relate to her role as advocate for the state. See

    Stanley Mot. to Dismiss, Doc. 87, pp. 5-6. Plaintiff’s characterizations in his response aside, the

    non-conclusory fact assertions in his complaint are “intimately associated with the judicial phase

    of the criminal process,” including “initiating a prosecution” and “presenting the State’s case.”

    Imbler, 424 U.S. at 430-31. The allegation against DA Stanley prior the filing of charges is that

    she reviewed and approved the arrest warrant affidavit. This conduct is intimately associated

    with the judicial phase and directly linked to initiating a prosecution. Where a prosecutor is

    involved in drafting, reviewing, or approving an arrest warrant affidavit or charging document,

    she acts as an advocate and is protected by absolute immunity. Kalina, 522 U.S. at 129-30

    (prosecutor functioned as advocate in submitting unsworn information and unsworn motion for

    arrest warrant).

    With respect to the plaintiff’s response on the issue of “supervision and training” [Resp.

    Doc. 129, p. 8], it is helpful to return to what the plaintiff actually pled on this topic. His

    allegations appear in sweeping conclusory language against groups of defendants. Compl. ¶¶

    955, 956. They are conclusory statements, not well-pled facts, and are not appropriately viewed

    as overcoming prosecutorial immunity.

    3
    Case No. 1:23-cv-01108-DDD-JPO Document 154 filed 05/03/24 USDC Colorado pg 4 of 5

    C. Qualified immunity.

    Plaintiff responds to DA Stanley’s alternative request for qualified immunity by arguing

    that his accusations against groups adequately identify what conduct he alleges against her. Resp.

    pp. 11-12 [Doc. 129]. This argument does not accord with Robbins v. Oklahoma, 519 F.3d 1242,

    1249- 50 (10th Cir. 2008). Given constraints of time and for efficiency, DA Stanley joins in the

    responses submitted by Deputy DAs Lindsey and Hurlbert. Lindsey Reply pp. 3-8 [Doc. 147];

    Hurlbert Reply pp. 3-8 [Doc. 149].

    Respectfully submitted,

    By s/Leslie L. Schluter
    Leslie L. Schluter
    DAGNER | SCHLUTER | WERBER LLC
    8400 East Prentice, Suite 1401
    Greenwood Village, CO 80111
    Telephone: (303) 221-4661
    Fax: (303) 221-4594
    E-mail: [email protected]

    Attorneys For Defendant


    District Attorney Linda Stanley

    TYPE-VOLUME CERTIFICATION
    I hereby certify that the foregoing reply complies with the type-
    volume limitation set forth in Judge Domenico’s Practice Standard
    III(A)(1).

    4
    Case No. 1:23-cv-01108-DDD-JPO Document 154 filed 05/03/24 USDC Colorado pg 5 of 5

    CERTIFICATE OF SERVICE (CM/ECF)

    I hereby certify that on May 3, 2024, I electronically filed the foregoing DEFENDANT
    STANLEY’S REPLY IN SUPPORT OF HER MOTION TO DISMISS [Doc. 87] with the
    Clerk of Court using the CM/ECF system which will send notification of such filing to the
    following e-mail addresses:

    Jane Holse Fisher-Byrialsen, Esq. Hollis Ann Whitson, Esq.


    David Nathan Fisher, Esq. Samler & Whitson, P.C.
    Fisher & Byrialsen PLLC [email protected]
    [email protected]
    [email protected]

    Iris Eytan, Esq. J. Andrew Nathan, Esq.


    Eytan Law LLC Nicholas Christaan Poppe, Esq.
    [email protected] Nathan Dumm & Mayer PC
    [email protected]
    [email protected]

    Eric M. Ziporin, Esq. William Thomas O’Connell, III, Esq.


    Jonathan N. Eddy, Esq. Wells Anderson & Race, LLC
    Courtney B. Kramer, Esq. [email protected]
    SGR, LLC
    [email protected]
    [email protected]
    [email protected]

    Andrew R. McLetchie, Esq. Dmitry B. Vilner, Esq.


    Rachel L. Bradley, Esq. Jennifer H. Hunt, Esq.
    Eden R. Rolland, Esq. Kathleen L. Spalding, Esq.
    Fowler Schimberg & Flanagan, P.C. Colorado Attorney General's Office
    [email protected] [email protected]
    [email protected] [email protected]
    [email protected] [email protected]

    Robert I. Lapidow, Esq.


    Sarah A. Thomas, Esq.
    Scott A. Neckers, Esq.
    Overturf McGath & Hull, P.C.
    [email protected]
    [email protected]
    [email protected] s/Marisa Showalter
    Paralegal

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