MICHAEL J. WATANABE, Magistrate Judge.
Plaintiff has filed two motions, which District Judge Christine M. Arguello has referred to the undersigned:
The motions are related to each other. In the first motion, Plaintiff argues that his pending state-court trial fits within the exceptions to Younger v. Harris, 401 U.S. 37 (1971), and he asks this Court to enjoin the state-court criminal proceedings.
In the second motion, Plaintiff argues that the first motion is unlikely to be resolved before his state-court trial, and he asks this Court to temporarily enjoin the state-court criminal proceedings for however long it takes to resolve the first motion.
The Court has reviewed the parties' filings (Docket Nos. 151, 153, & 157), taken judicial notice of the Court's entire file, and considered the applicable Federal Rules of Civil Procedure, statutes, and case law. The Court notes that Plaintiff has not yet filed a reply, but Plaintiff has an interest an expedited ruling because his underlying criminal trial is set for September 28, 2015—less than three weeks from the date of this Report and Recommendation. Further, this Court may rule on a motion any time after it is filed. D.C.COLO.LCivR 7.1(d) ("Nothing in this rule precludes a judicial officer from ruling on a motion at any time after it is filed."). The Court hereby recommends that both motions be denied.
Plaintiff was prosecuted in 2010 for felony stalking, based largely upon a series of rambling and explicit emails sent to a former high-school classmate named Liz LaFemina. In parallel civil proceedings, a permanent protection order (PPO) was entered against Plaintiff in LaFemina's favor. In the criminal proceedings, Plaintiff pleaded guilty as part of a deferred judgment and sentence (DJ&S) agreement. Pursuant to Colorado's DJ&S statute, the guilty plea was withdrawn and the charges were dismissed after Plaintiff successfully completed the conditions of the agreement in 2012. In 2012 and 2013, Plaintiff filed at least one motion to vacate his criminal case, but all such motions were denied as moot.
In 2013, Plaintiff filed a motion in the PPO case to vacate the judgment for fraud upon the court. He served a copy of that motion upon LaFemina. After the motion was denied, he filed a different motion and again served it upon LaFemina. The District Attorney deemed service of these motions to be unlawful contact in violation of the PPO, and is now prosecuting Plaintiff for those alleged violations. Plaintiff asks this Court to enjoin the state-court criminal proceedings on the grounds that they violate his First, Fourth, and Fourteenth Amendment rights.
Under Younger v. Harris, 401 U.S. 37 (1971), "[a] federal court must abstain from exercising jurisdiction when: (1) there is an ongoing state criminal . . . proceeding, (2) the state court provides an adequate forum to hear the claims raised in the federal complaint, and (3) the state proceedings involve important state interests, matters which traditionally look to state law for their resolution. . . ." Amanatullah v. Colo. Bd. of Med. Exam'rs, 187 F.3d 1160, 1163 (10th Cir. 1999). These elements are easily met here, a point that Plaintiff concedes. Plaintiff argues, however, that the Younger abstention doctrine is subject to exceptions that apply here. Younger established three exceptions: (1) "bad faith or harassment," (2) prosecution under a statute that is "flagrantly and patently" unconstitutional, or (3) other "extraordinary circumstances" involving irreparable injury. 401 U.S. at 46-55.
To establish the "bad faith or harassment" exception, Plaintiff must establish one of several possible tests:
Phelps v. Hamilton, 59 F.3d 1058, 1065 (10th Cir. 1995) (internal citations omitted).
To qualify under the second Younger exception, Plaintiff must show that the underlying statute is "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it." Younger, 401 U.S. at 53-54. To satisfy this test, the invalidity of the statute must be "patent and obvious." Phelps, 59 F.3d at 1064.
To qualify for the third exception, Plaintiff must show exceptional circumstances constituting irreparable injury—and the fact the accused may have to stand trial is not an `irreparable injury. Younger, 401 U.S. at 49. Rather, a threat to an individual's federally protected rights constitutes irreparable injury only where the threat "cannot be eliminated by . . . defense against a single criminal prosecution." Younger, 401 U.S. at 46.
In support of his motion, Plaintiff presented nearly four hundred pages of documents. The exhibits introduced here are as follows:
Plaintiff also incorporates by reference his 215-page Second Amended Complaint and the exhibits attached thereto. (Docket No. 151-6, p.2.) The exhibits in that document (Docket No. 83) are largely duplicative of those described above.
The Court finds that Plaintiff has failed to establish any of the exceptions to Younger abstention. Plaintiff's arguments all boil down to his belief that LaFemina lied to the police and to the state courts during his 2010 criminal and civil proceedings—and that the only thing stopping Defendants from agreeing with him on that point is their complicity in the conspiracy against him. Plaintiff's documentary evidence establishes no such conspiracy, however, nor does it (on its own) establish any lies by LaFemina.
As noted earlier, the Tenth Circuit has identified three tests for when a prosecution is made in bad faith or for harassment:
Phelps, 59 F.3d at 1065 (internal citations omitted).
The Court finds that Plaintiff's current criminal prosecution is not "frivolous or undertaken with no reasonably objective hope of success." The underlying prosecution is based on the legal theory that Plaintiff was prohibited from contacted LaFemina by any means, including by mail, and he nonetheless mailed her two packages containing extensive discussions of LaFemina's purported lies and of Plaintiff's purported relationship with LaFemina. (Docket No. 151-2, pp.2-7; Docket Nos. 151-3, pp.110-42.) The Court finds that not only is the Boulder District Attorney's theory not frivolous, it is indeed well-founded, and upon facts that Plaintiff does not dispute. It should be noted that Plaintiff's constitutional defenses—based on First Amendment's right of access to the courts and on the Due Process Clause's rule of lenity—are not at all frivolous. But the fact that those potential constitutional defenses exist does not, alone, show that the charges lack any objectively reasonable hope of success.
The Court also finds that Plaintiff's current criminal prosecution is not "motivated by the defendant's suspect class or in retaliation for the defendant's exercise of constitutional rights." Neither the documentary evidence nor Plaintiff's interpretation of it establishes any retaliatory animus on the part of the prosecution. Likewise, neither the documentary evidence nor Plaintiff's interpretation of it establishes any discriminatory animus based on Plaintiff's gender (or any other suspect classification). Rather, the documentary evidence establishes—and the Court explicitly finds—that Plaintiff's prosecution has been initiated because Plaintiff's conduct creates probable cause to believe that he committed the crimes he is charged with.
The Court finds that Plaintiff's current criminal prosecution has not been "conducted in such a way as to constitute harassment and an abuse of prosecutorial discretion." In order to meet this test, Plaintiff would have to show that the prosecutorial conduct has been so oppressive as to constitute harassment. "While the threshold test does not require a specific number of prosecutions, it is clear that the number of prosecutions must reach an oppressive level." Phelps, 59 F.3d at 1066. The burden for this showing is heavy: the Tenth Circuit has held, for example, that an administrative prosecution that had been pressed three times against a defendant did not meet this "heavy burden." Weitzel v. Div. of Occupational & Prof'l Licensing of Dep't of Commerce of State of Utah, 240 F.3d 871, 877 (10th Cir. 2001). Here, the documentary evidence shows that, although his 2010 emails will be introduced as prior-bad-acts evidence, his current criminal prosecution is based on charged conduct occurring during 2013. (Docket No. 151-2, pp.2-7; Docket Nos. 151-4, pp.8-21; Docket Nos. 151-5, pp.11-13.) The Court finds that Plaintiff has not been forced to defend multiple prosecutions for the same offense—as to the conduct at issue in his current criminal prosecution, he is defending a single criminal case. This does not meet the test for harassment or abuse of prosecutorial discretion.
The Court finds that Plaintiff has not established any of the tests for Younger's first exception.
To qualify under the second Younger exception, Plaintiff must show that the underlying statute is "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it." Younger, 401 U.S. at 53-54. Plaintiff has made no effort to meet this test, arguing instead that his prosecution—the statute as applied in this case—is unconstitutional.
As the Tenth Circuit has explained, discussing the foregoing language from Younger:
Phelps, 59 F.3d at 1064 (internal citations omitted). The Court finds that there is no colorable argument that the statutes at issue in Plaintiff's prosecution—felony stalking and misdemeanor violation of a protection order—are unconstitutional. It is patent and obvious, rather, that they are in fact constitutional. As the Court noted above, Plaintiff's constitutional defenses are not frivolous—but they are not so strong as to make the statute at issue patently and obviously unconstitutional as applied. If the second Younger exception were so broad as to encompass this case, it would encompass virtually all as-applied challenges—and it would thus swallow the rule. The Court finds that the statute at issue, whether on its face or as applied in Plaintiff's current criminal prosecution, is not patently and obviously unconstitutional.
The third example requires a threat to Plaintiff's federally protected rights constitutes irreparable injury only where the threat "cannot be eliminated by . . . defense against a single criminal prosecution." Younger, 401 U.S. at 46. Although Plaintiff alleges a broad conspiracy to deprive him of a fair trial—running through his 2010 criminal proceeding, his 2010 PPO, and now his current criminal prosecution—the Court finds that Plaintiff has failed to prove any such conspiracy. As a result, Plaintiff presents no injury beyond having to defend a single criminal prosecution—which, under Younger, is emphatically not extraordinary circumstances.
The Court recommends that Plaintiff's Motion to Request Injunctive Relief (Docket No. 151) be denied.
As recently set forth by Judge Martinez:
Verlo v. City & Cnty. of Denver, Colo., ___ F. Supp. 3d ___, 2015 WL 5012919, at *1 (D. Colo. Aug. 25, 2015) (internal citations, quotation marks, and alterations omitted).
As established supra, the Court finds that Plaintiff is not substantially likely to succeed on the merits. And in light Younger's strong policy against enjoining state criminal proceedings, the Court finds that the fourth factor weighs heavily against Plaintiff. Balancing all four factors, the Court finds that Plaintiff has failed to show an entitlement to a preliminary injunction.
The Court recommends that Plaintiff's Motion to Request Injunction for Temporary Stay (Docket No. 151) be denied.
For the foregoing reasons, it is therefore RECOMMENDED that Plaintiff's Motion to Request Injunctive Relief (Docket No. 151) and Plaintiff's Motion to Request Injunction for Temporary Stay (Docket No. 153) both be DENIED.