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.
In August 2015, plaintiff submitted a Colorado Open Records Act ("CORA") request
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.
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
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. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and alteration marks omitted); see also Khalik, 671 F.3d at 1190 ("A plaintiff must nudge [his] claims across the line from conceivable to plausible in order to survive a motion to dismiss." (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955)). If a complaint's allegations are "so general that they encompass a wide swath of conduct, much of it innocent," then plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted). Thus, even though modern rules of pleading are somewhat forgiving, "a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (alteration marks omitted).
Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate if the Court lacks subject matter jurisdiction over claims for relief asserted in the complaint. Rule 12(b)(1) challenges are generally presented in one of two forms: "[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests." Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)). When resolving a facial attack on the allegations of subject matter jurisdiction, the Court "must accept the allegations in the complaint as true." Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). To the extent the defendant attacks the factual basis for subject matter jurisdiction, the Court "may not presume the truthfulness of the factual allegations in the complaint, but may consider evidence to resolve disputed jurisdictional facts." SK Finance SA v. La Plata County, 126 F.3d 1272, 1275 (10th Cir. 1997). "Reference to evidence outside the pleadings does not convert the motion to dismiss into a motion for summary judgment in such circumstances." Id. Ultimately, and in either case, plaintiff has "[t]he burden of establishing subject matter jurisdiction" because she is "the party asserting jurisdiction." Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008).
Defendants in this case rely on several documents outside of the pleadings in moving to dismiss plaintiff's claims. See Docket Nos. 49-1 to 49-11. Generally, if a court considers matters outside the pleadings in deciding a Rule 12(b)(6) motion, "the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P 12(d). However, "if a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic
The remaining exhibits, Docket Nos. 49-7 and 49-8, are part of the judicial record in the underlying CORA proceedings. As matters of public record subject to judicial notice, the orders may be considered for their contents without converting the motion to dismiss into a motion for summary judgment. See Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006).
Defendants move to dismiss plaintiff's claims under the First and Fourteenth Amendments on three grounds: (1) defendants are absolutely immune from suit; (2) plaintiff's allegations do not establish a constitutional violation or a claim for municipal liability; and (3) plaintiff's rights were not clearly established at the time of the alleged constitutional violations. See Docket No. 49 at 7, 12, 17, 18.
Defendants argue that they are absolutely immune from liability under the First and Fourteenth Amendments to the extent plaintiff's constitutional claims are premised on defendants' filing of the formal grievances with the offices of attorney regulation and the motion for contempt in the underlying CORA litigation. See Docket No. 49 at 7-10. Plaintiff responds that the state-created immunities relied on by defendants cannot serve as a bar to her federal constitutional claims under the Supremacy Clause. See Docket No. 54 at 6-8. Additionally, she argues that defendants have not cited any authority supporting the extension of federal absolute immunity doctrines to the facts of this case. See id. at 9-13.
Defendants bifurcate their immunity argument into two sections. The first addresses
Plaintiff correctly argues that state-created immunity doctrines do not operate as a bar to her federal constitutional claims. As the Supreme Court explained in Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980),
Id. at 284 n.8, 100 S.Ct. 553; see also Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 375, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990) ("The elements of, and the defenses to, a federal cause of action are defined by federal law."); Tiemann v. Tul-Center, Inc., 18 F.3d 851, 853 (10th Cir. 1994) (holding that the Oklahoma Governmental Tort Claims Act did not immunize the defendants from liability under 42 U.S.C. § 1983). Thus, to the extent defendants rely on immunity doctrines created by state statute or common law, those doctrines do not support the dismissal of plaintiff's claims under the First and Fourteenth Amendments.
Some of the cases cited by defendants address absolute immunity doctrines recognized under federal law. See, e.g., Valdez v. City & Cty. of Denver, 878 F.2d 1285 (10th Cir. 1989). Although defendants do not clearly distinguish among the various federally-recognized forms of absolute immunity, see Rehberg v. Paulk, 566 U.S. 356, 363, 132 S.Ct. 1497, 182 L.Ed.2d 593 (2012) (discussing federal immunity doctrines), the cases they cite address four types of immunity that are potentially relevant in this case: (1) judicial or quasijudicial immunity; (2) witness immunity; (3) legislative immunity; and (4) prosecutorial immunity. See, e.g., Briscoe v. LaHue, 460 U.S. 325, 335-46, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (witness immunity); Butz v. Economou, 438 U.S. 478, 511-17, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (quasi-judicial and prosecutorial immunity); Imbler v. Pachtman, 424 U.S. 409, 420-30, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (prosecutorial immunity); Stein v. Disciplinary Bd. of Sup. Ct. of N.M., 520 F.3d 1183, 1190-91, 1193-95 (10th Cir. 2008) (judicial, quasi-judicial, and prosecutorial immunity); Valdez, 878 F.2d at 1287-88 (judicial and quasi-judicial immunity); Spear v. Town of W. Hartford, 954 F.2d 63, 66 (2d Cir. 1992) (prosecutorial immunity); Shoultes v. Laidlaw, 886 F.2d 114, 117-18 (6th Cir. 1989) (legislative, prosecutorial, and judicial immunity).
Although defendants cite cases involving the assertion of judicial, quasi-judicial, and witness immunity, they have not provided any basis for applying these doctrines in the context of this lawsuit. See Collins v. Daniels, 916 F.3d 1302, 1315 (10th Cir. 2019) ("The proponent of a claim to absolute immunity bears the burden of establishing the justification for such immunity." (quoting Antoine v. Byers &
"Absolute legislative immunity attaches to all actions taken in the sphere of legitimate legislative activity." Collins, 916 F.3d at 1317 (quoting Bogan v. Scott-Harris, 523 U.S. 44, 54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998)). The doctrine extends to the legislative activities of local legislators. See Bogan, 523 U.S. at 49, 118 S.Ct. 966. "Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it." Id. at 54, 118 S.Ct. 966.
At the outset, the Court notes that defendants do not clearly assert legislative immunity with respect to the attorney misconduct complaints. Defendants' only apparent invocation of the doctrine is a citation to Shoultes in the portion of their brief that addresses their entitlement to immunity for the filing of the contempt motion. See Docket No. 49 at 10. But even that discussion fails to specify which of the various defendants are asserting legislative immunity and for what conduct.
Even construing defendants' argument liberally, the Court finds no basis for applying legislative immunity in this case. There is no indication from the allegations that Ms. Massey, the city attorney, was acting in a legislative capacity when she filed the contempt motion and the attorney misconduct complaints. Compare Bogan, 523 U.S. at 55, 118 S.Ct. 966 (holding that voting for an ordinance, introducing a budget, and signing an ordinance into law constituted legislative actions because "they were integral steps in the legislative process"); Shoultes, 886 F.2d at 118 (extending prosecutorial immunity to city attorney for his decision to seek a contempt citation). And, to the extent Shoultes and Bogan support a finding that voting for a city ordinance constitutes a "quintessentially legislative" activity, Bogan, 523 U.S. at 45, 118 S.Ct. 966; see also Shoultes, 886 F.2d at 117, "voting on an issue, in and of itself, [does not] determine that [an] act is legislative in nature." Kamplain v. Curry Cty. Bd. of Comm'rs, 159 F.3d 1248, 1252 (10th Cir. 1998). Instead, an act is legislative if it "contain[s] matter which is properly ... regarded as legislative in its character and effect." Id. (quoting INS v. Chadha, 462 U.S. 919, 952, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983)).
In Kamplain, the Tenth Circuit held that a county board of commissioners acted in an administrative, rather than legislative, capacity when it voted to ban the plaintiff's attendance, participation, and speech at future commission meetings. Id. at 1252. The court reasoned that the board's actions did not serve a legislative function because they "did not concern the enactment or promulgation of public policy," but "were simply efforts to monitor and discipline [the plaintiff's] presence and conduct at future Commission meetings." Id.
This case is more similar to Kamplain than it is to Sable. While plaintiff alleges that the city council defendants voted to authorize the filing of the attorney misconduct complaints, Docket No. 41 at 16-17, ¶ 71, their vote did not concern the "enactment or promulgation of public policy," Kamplain, 159 F.3d at 1252, but was a disciplinary measure taken in response to plaintiff's conduct in and relating to the CORA proceedings. Because the city council's action was administrative in nature, legislative immunity does not apply.
Under the doctrine of prosecutorial immunity, government attorneys "are absolutely immune from civil liability for damages for acts undertaken ... in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of [their] role as [advocates] for the State." Stein, 520 F.3d at 1193 (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). While this doctrine was traditionally limited to the actions of government prosecutors in criminal proceedings, see Mink v. Suthers, 482 F.3d 1244, 1258 (10th Cir. 2007) (noting that, "[t]raditionally, the doctrine [of prosecutorial immunity] did not apply to other public officials" and was "limited to suits for malicious prosecution and defamation"), courts have extended it to "bar officials charged with the duties of investigating, drawing up, and presenting cases involving attorney discipline," see, e.g., Stein, 520 F.3d at 1193 (internal quotation marks omitted) (citing Clulow v. Oklahoma, 700 F.2d 1291, 1298 (10th Cir. 1983)), and government defense attorneys involved in civil litigation. See, e.g., Benavidez v. Howard, 931 F.3d 1225, 1231-32 (10th Cir. 2019) (holding that absolute immunity barred claims based on acts taken by government defense counsel in civil case). The "determinative factor is advocacy." Mink, 482 F.3d at 1261 (internal quotation marks omitted). Thus, "the more distant a function is from the judicial process, the less likely absolute immunity will attach." Id. (internal quotation marks omitted). The Tenth Circuit recently summarized "the rule of absolute immunity as applied to government attorneys" as follows:
Benavidez, 931 F.3d at 1231 (citing Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993), and Mink, 482 F.3d at 1261).
Defendants assert absolute immunity in relation to: (1) the filing of the attorney misconduct complaints with the offices of attorney regulation; and (2) the filing of the contempt motion in the CORA proceedings. See Docket No. 49 at 7-10. The
As discussed above, defendants' argument with respect to the attorney misconduct complaints appears to rely exclusively on state-created immunity doctrines. See Docket No. 49 at 7-8. To the extent the argument could be read as implicating federally-recognized forms of absolute immunity, however, defendants have not cited any federal authority extending prosecutorial immunity to the filing of attorney misconduct complaints. Nor do federal cases support defendants' position. The Supreme Court has espoused the general principle that an official performing the function of a "complaining witness" is not entitled to prosecutorial immunity. Kalina v. Fletcher, 522 U.S. 118, 131, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997) (holding that a prosecutor was not entitled to absolute immunity for attesting to facts in support of a probable cause finding). In McCormick v. Lawrence, Kansas, 99 F. App'x 169 (10th Cir. 2004) (unpublished), the Tenth Circuit applied this principle to hold that an assistant attorney general was not entitled to prosecutorial immunity for filing a complaint with the state consumer protection division suggesting that the plaintiff be investigated for practicing law without a license. Id. at 172-74. Likewise, in Lampton v. Diaz, 639 F.3d 223 (5th Cir. 2011), the Fifth Circuit held that prosecutorial immunity did not extend to a prosecutor's "post-trial transfer of private federal tax records to a state ethics commission." Id. at 225. After prosecuting a Mississippi Supreme Court justice for various criminal violations of which the justice was ultimately acquitted, the prosecutor in Lampton filed a complaint with the Mississippi Commission on Judicial Performance regarding the justice's conduct. Id. at 225. The prosecutor's complaint included copies of the justice's tax records, which were obtained during the earlier criminal investigation. Id. The supreme court justice and his wife subsequently filed a § 1983 lawsuit against the prosecutor, who moved to dismiss the case on the basis of prosecutorial immunity. Id. The Fifth Circuit affirmed the district court's denial of immunity, holding that the prosecutor's conduct in filing the ethics complaint appeared, on its face, "to be well outside the bounds of" common-law immunity protections because "[c]onduct undertaken after a federal prosecution is over is not part of the `judicial phase,' and a state ethics proceeding is not part of `the criminal process.'" Id. at 226. The court distinguished cases extending prosecutorial immunity to members of state ethics commissions on the ground that the prosecutor was not acting as a "member of the [state ethics commission]" or "a state ethics attorney authorized to prosecute cases before it." Id. at 227. Instead, the court reasoned, the prosecutor's "status was merely that of a complaining witness" who would not have been "accorded absolute immunity at common law." Id.
The logic of McCormick and Lampton applies equally to this case. While defendants allegedly filed formal actions with three state offices of attorney discipline concerning plaintiff's conduct in the CORA litigation, see Docket No. 41 at 16-17, ¶¶ 71-73, there are no allegations that any of the defendants were members of the state offices or were state ethics attorneys tasked with prosecuting attorney misconduct complaints. See Lampton, 639 F.3d at 227. As the Tenth Circuit has stated, "[t]he relevant distinction for absolute immunity purposes is whether the official's actions are prosecutorial or testimonial; is the prosecutor acting as an advocate for the state or as fact witness?" Thomas v. Kaven, 765 F.3d 1183, 1192 (10th Cir. 2014) (citing Kalina, 522 U.S. at 129-30, 118 S.Ct. 502). Here, defendants' actions in filing the bar complaints were purely testimonial.
The cases defendants cite do not support a different conclusion. Although Butz, Stein, Spear, and Shoutes all addressed the issue of prosecutorial immunity, the defendants in those cases raised the defense in connection with traditional prosecutorial functions, such as the initiation of legal proceedings, which they were authorized to perform. See Butz, 438 U.S. at 515-16, 98 S.Ct. 2894 (extending absolute immunity to agency officials' conduct initiating and presenting evidence in administrative proceedings); Stein, 520 F.3d at 1194 (holding that state disciplinary counsel was entitled to absolute immunity for deciding to bring an ethical complaint and failing to contact an adverse witness in advance of trial); Spear, 954 F.2d at 66 (holding that a local executive officer was entitled to absolute immunity for authorizing the initiation of legal proceedings); Shoultes, 886 F.2d at 118 (holding that city attorney was entitled to prosecutorial immunity for deciding to seek a contempt citation). The same is not true of defendants in this case.
Nor is the Court persuaded that Ms. Massey is entitled to prosecutorial immunity simply because she was professionally obligated to report unethical conduct to the state bar associations. See Docket No. 49 at 5-6; Docket No. 58 at 9 n. 6. The Fifth Circuit in Lampton rejected an identical argument, explaining that the defendant's "ethical responsibilities did not make the transfer of tax records to a state commission part of his duty as a prosecutor." 639 F.3d at 228. The Court agrees with this reasoning. The availability of prosecutorial immunity depends on whether the actions at issue were sufficiently related to the judicial process. See Thomas, 765 F.3d at 1191. Whether Ms. Massey was independently obligated, by virtue of her bar license, to report plaintiff's unethical conduct is irrelevant. Cf. id. ("In determining whether particular acts of government officials are eligible for absolute immunity, we ... look[] to the nature of the function performed, not the identity of the actor who performed it." (internal quotation marks omitted)).
Although the Court rejects defendants' prosecutorial immunity defense with respect to the attorney misconduct complaints, the Court agrees that Ms. Massey is immune from liability for her decision to file the contempt motion in the CORA litigation. Plaintiff argues that prosecutorial immunity does not apply because (1) "there is no special authorization for government attorneys to file contempt motions"; (2) "the filing of the contempt motion was not `analogous' to a criminal prosecution"; and (3) "other courts have held that government defense attorneys... are not entitled to absolute immunity for actions performed in defending a government entity." Docket No. 54 at 9-10. However, these arguments are foreclosed by Benavidez v. Howard, 931 F.3d 1225 (10th Cir. 2019), in which the Tenth Circuit held that "a government defense attorney who, in the course of a civil adjudication, prepares a motion and arranges for the presentation of evidence on the court record by way of affidavit in support of the motion, is absolutely immune from a collateral § 1983 suit for damages based on the filing of such motion and affidavit." Id. at 1232 (holding that city attorneys were immune from suit for the preparation and filing of a motion for a protective order in a civil case initiated by the plaintiff). To the extent plaintiff suggests that Ms. Massey may not avail herself of absolute immunity because her litigation conduct was guided by ulterior motives, see Docket No. 54 at 10 (arguing that Ms. Massey is not entitled to absolute immunity because "the contempt motion was an intentional attempt to silence [plaintiff]"), plaintiff misunderstands
For the foregoing reasons, the Court finds that Ms. Massey is entitled to absolute immunity for the filing of the contempt motion. However, this holding is limited in two key respects. First, it does not apply to the city council defendants who, as discussed in more detail below, bear no apparent responsibility for the filing of the contempt motion. Second, the holding does not bar plaintiff's claims against the city, or Ms. Massey in her official capacity, because absolute immunity is a personal defense. See Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (stating that personal immunity defenses are unavailable in an official-capacity action, and that "[t]he only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua entity, may possess, such as the Eleventh Amendment"); Mairena v. Foti, 816 F.2d 1061, 1064 n.1 (5th Cir. 1987) ("[P]rosecutorial immunity is a personal defense, and is not applicable in this case since the district attorney is being sued in his official capacity only."); Gearin v. Rabbett, 2011 WL 317728, at *7 (D. Minn. Jan. 28, 2011) (discussing "substantial authority" supporting the "proposition that prosecutorial immunity does not extend to municipalities").
Defendants argue that plaintiff has failed to allege a violation of her First and Fourteenth Amendment rights and that her individual capacity claims are barred by the doctrine of qualified immunity. See Docket No. 49 at 12-19.
When a defendant raises the defense of qualified immunity, a "plaintiff carries a two-part burden to show: (1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct." T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017) (internal quotation marks omitted). Courts are "permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case." Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
A plaintiff may satisfy the clearly established prong by citing "a Supreme Court or Tenth Circuit decision on point" or by demonstrating that "the clearly established weight of authority from other courts ... [has] found the law to be as the plaintiff maintains." Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016) (internal quotation marks omitted). While "[a] plaintiff need not show the very act in question previously was held unlawful in order to establish an absence of qualified immunity," id., "existing precedent must have placed the statutory or constitutional question beyond debate." White v. Pauly, ___ U.S. ___, 137 S.Ct. 548, 551, 196 L.Ed.2d 463 (2017) (quoting Mullenix v. Luna, ___ U.S. ___, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015)). In evaluating whether a plaintiff has met this burden, the Supreme Court has repeatedly cautioned courts "not to define clearly established
Plaintiff asserts two separate First Amendment claims. Her first claim for relief alleges that defendants' actions in filing the contempt motion and the formal grievances with the state offices of attorney discipline constituted a content- or viewpoint-based restriction on plaintiff's free speech rights. See Docket No. 41 at 20-21, ¶¶ 92-98. Plaintiff's second claim for relief asserts that defendants retaliated against her in violation of the First Amendment. See id. at 22-23, ¶¶ 108-111.
In their motion to dismiss, defendants apply a retaliation framework to both of plaintiff's First Amendment claims. See Docket No. 49 at 12. In addition to not challenging the application of that framework to her first claim for relief, plaintiff does not articulate a distinct legal theory supporting that claim. While plaintiff contends that defendants' conduct constituted a "content-based restriction" on her speech, see Docket No. 54 at 15, she does not identify a court order that operated as a prior restraint on the exercise of her First Amendment rights, see, e.g., N.Y. Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (addressing the constitutionality of an injunction preventing the New York Times and the Washington Post from publishing the contents of a classified study), challenge a specific law, regulation, or policy restricting her ability to speak, see, e.g., Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 135 S.Ct. 2218, 2227-32, 192 L.Ed.2d 236 (2015) (holding that city ordinance regulating the display of outdoor signs violated the First Amendment); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 264-65, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (holding that state libel laws violated the First and Fourteenth Amendments); Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982) (characterizing issue as "whether a policy of compelling public employees to take a leave of absence if they want to run for public office is sufficiently important to the effective functioning of state (or, as here, city) government to justify the impairment of freedom of speech that may result"), or seek to use the First Amendment as a defense to tort liability. See, e.g., Snyder v. Phelps, 562 U.S. 443, 459-60, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (holding that church was not subject to tort liability for protected speech under the First Amendment). Moreover, the cases plaintiff cites do not suggest that the type of conduct engaged in by defendants can constitute a "content-based restriction" on speech. See, e.g., Reed, 135 S. Ct. at 2226-27 ("Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed." (emphasis added)); Scheffler v. Molin, 743 F.3d 619, 621 & n.2 (8th Cir. 2014) (considering whether conduct by a city official constituted First Amendment retaliation and declining to address whether the same conduct might amount to a "content-based restriction" on the plaintiff's "right of expression in a limited public forum"); Garcia v. City of Trenton, 348 F.3d 726, 727 (8th Cir. 2003) (considering whether conduct by city officials was retaliation in violation of the First Amendment). Last, plaintiff bases both of her First Amendment claims on the same underlying conduct. Compare Docket No. 54 at 15-16, with, id. at 17-18. Because plaintiff has failed to articulate a distinct and legally supported basis for her
To succeed on a First Amendment retaliation claim, plaintiff must show: (1) she "was engaged in constitutionally protected activity"; (2) defendants' "actions caused [her] to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity"; and (3) defendants' "adverse action was substantially motivated as a response to [plaintiff's] exercise of constitutionally protected conduct." Shero v. City of Grove, Okla., 510 F.3d 1196, 1203 (10th Cir. 2007). Plaintiff asserts that defendants retaliated against her by: (1) filing the contempt motion in the CORA litigation; (2) making defamatory statements about her and her speech regarding the Air Quality Study; and (3) filing formal grievances with the state offices of attorney discipline. See Docket No. 54 at 17.
Because Ms. Massey is absolutely immune from liability for her decision to seek contempt sanctions against plaintiff in the underlying CORA proceedings, the only question is whether the filing of the contempt motion can support plaintiff's First Amendment claim against Colorado Springs and the city council defendants.
As indicated above, plaintiff does not specifically allege that any of the city council defendants were involved in the decision to seek contempt sanctions. Although she asserts that "defendants" violated her rights by filing the motion for contempt, see, e.g., Docket No. 41 at 3, 10-11, 21, ¶¶ 6, 42-43, 45, 97, general allegations that do not establish each individual defendant's personal involvement in the alleged constitutional violation are insufficient to confer liability under § 1983. See Pahls v. Thomas, 718 F.3d 1210, 1231-33 (10th Cir. 2013) (holding that the district court erred by failing to conduct "a differentiated analysis" of each defendant's personal involvement in the alleged First Amendment violation); Brown v. Montoya, 662 F.3d 1152, 1164-66 (10th Cir. 2011) (holding that allegations referring generically to "Defendants" were insufficient to establish one defendant's personal participation in the alleged constitutional violation); see also id. at 1165 ("The need for individualized allegations is especially important where ... each of the defendants had different powers and duties, but the Complaint fails to identify specific actions taken by particular defendants that could form the basis of a constitutional violation." (internal quotation marks omitted)). Because plaintiff's allegations do not establish that any of the city council defendants were personally involved in the decision to file the contempt motion, those defendants are entitled to qualified immunity as to that aspect of plaintiff's free speech and retaliation claims.
The Court also finds that plaintiff has failed to state a municipal liability claim based on the filing of the contempt motion.
Id. at 1283 (internal quotation marks omitted).
In response to defendants' motion to dismiss her municipal liability claims, plaintiff argues that "the decision to file bar complaints against [plaintiff] was a decision made by, and ratified by, the City Council, Colorado Springs' official policymakers," Docket No. 54 at 21-22, thereby predicating municipal liability for the attorney misconduct complaints on the policymaker and ratification theories identified above. In contrast, plaintiff does not identify any policy or custom leading to the filing of the contempt motion. Although the complaint refers generally to the motion filed by "Colorado Springs," Docket No. 41 at 3, 10-11, ¶¶ 6, 42-45, it does not allege that Ms. Massey filed the motion pursuant to a municipal policy or custom, that Ms. Massey was acting as a final policymaker for Colorado Springs, or that some other municipal policymaker directed or ratified Ms. Massey's decision.
To the extent plaintiff asserts that defamatory statements by city officials constituted retaliatory conduct in violation of the First Amendment, see Docket No. 54 at 17; see also Docket No. 41 at 12-16, 19-20, ¶¶ 48-67, 87-88, this aspect of her claim fails on the second element.
Whether defendants' conduct caused plaintiff an injury that would chill a person of ordinary firmness from continuing to engage in protected First Amendment activity is an objective standard. See Eaton v. Meneley, 379 F.3d 949, 954 (10th Cir. 2004). This standard "permits a plaintiff who perseveres despite governmental interference to bring suit," but precludes claims based on "a trivial or de minimis injury." Id. at 954-55 (internal quotation marks omitted).
Here, plaintiff asserts a reputational injury stemming from public statements by various city officials that plaintiff's claims about the Air Quality Study were "not true," Docket No. 41 at 12-13, ¶¶ 49-52, that she "may have violated" the Colorado Court of Appeals order by talking publicly about the Air Quality Study, id. at 15, ¶ 62, that she knew her actions were "illegal," id. at 14, ¶¶ 56-57, and that she had acted unethically. Id. at 19, ¶ 87; see Docket No. 54 at 17 (arguing that "defamatory statements that cause a person to lose professional standing, and job opportunities, constitute action that would chill a person of ordinary firmness from continuing to speak"). As the Tenth Circuit has stated, however, "injury to one's reputation is not enough to defeat constitutional interests in furthering uninhibited, robust debate on public issues." Eaton, 379 F.3d at 956 (quoting Phelan v. Laramie Cty. Cmty. College Bd. of Trustees, 235 F.3d 1243, 1248 (10th Cir. 2000)). Applying the "vigorous" standard for evaluating objective chill, Valdez v. New Mexico, 109 F. App'x 257, 263 (10th Cir. 2004) (unpublished), courts in this circuit have found statements concerning the illegality or impropriety of a plaintiff's conduct insufficient, standing alone, to support a First Amendment retaliation claim. See, e.g., How v. City of Baxter Springs, Kan., 217 F. App'x 787, 798 (10th Cir. 2007) (unpublished) (city attorney's statements to newspaper that he had found a special prosecutor willing to re-file criminal charges against the plaintiff did not cause the plaintiff an injury that would have "chill[ed] a person of ordinary firmness from continuing to exercise his constitutional rights"); Valdez, 109 F. App'x at 263 (statements made to the press regarding the plaintiff's possible involvement in criminal activity did not satisfy the "chill" element of a First Amendment claim); Taylor v. City of Claremore, 2019 WL 3482965, at *9 (N.D. Okla. July 31, 2019) (statement that the plaintiff had "committed perjury" would not have chilled a person of ordinary firmness from continuing to engage in First Amendment activity); see also Phelan,
The Tenth Circuit's decision in Worrell v. Henry, 219 F.3d 1197 (10th Cir. 2000), is not inconsistent. In that case, an investigator asserted a First Amendment retaliation claim against a law enforcement officer who allegedly threatened the plaintiff's prospective employer — the district attorney — that the officer's agency would withdraw its support for the district attorney's fledgling drug task force if the plaintiff were hired. See id. at 1200, 1202-03, 1213. The Tenth Circuit held that the plaintiff had satisfied the second element of his retaliation claim because there was evidence showing that the defendant had "caused the withdrawal of [the plaintiff's] job offer by refusing to cooperate with the [district attorney's] fledgling task force," and the defendant's "statements that [the plaintiff] was not trusted by a significant section of the law enforcement community could adversely affect [the plaintiff's] ability to obtain other positions." Id. at 1213. Although Worrell supports the idea that statements having an adverse effect on an individual's employment prospects may, under some circumstances, be sufficient to demonstrate objective chill, the defendant in Worrell did not simply make disparaging comments about the plaintiff — he directly caused the withdrawal of the plaintiff's job offer by threatening to withhold resources from the district attorney if the plaintiff was hired. See 219 F.3d at 1213. While plaintiff in this case alleges that she lost out on one "professional client opportunity," Docket No. 41 at 20, ¶ 88, there are no allegations that defendants directly interfered with her client relationships. Moreover, the complaint does not establish that the loss of the client opportunity was the result of the alleged defamatory statements as opposed to the filing of the contempt motion or the bar complaints. See id. (stating only that she "lost at least one professional client opportunity because of Defendants' false statements"); see also Glover v. Mabrey, 384 F. App'x 763, 770 (10th Cir. 2010) (unpublished) ("Merely encouraging or engaging in action is not an actionable constitutional violation unless it results in some harm to the plaintiff."); McBeth v. Himes, 598 F.3d 708, 718-20 (10th Cir. 2010) (holding that the plaintiff had failed to establish the second element of her retaliation claim because she had not shown that the defendant's retaliatory conduct was the but-for cause of her injury).
Because plaintiff has failed to allege that defendants' alleged defamatory statements caused an injury that would have chilled a person of ordinary firmness from continuing to engage in protected First Amendment activity, see Eaton, 379 F.3d at 956 (stating that the "objective standard of a person of ordinary firmness ... is substantial enough that not all insults in public debate become actionable under the Constitution"), this aspect of plaintiff's First Amendment claims will be dismissed.
Plaintiff asserts a First Amendment retaliation claim based on defendants' filing of formal grievances with the state offices of attorney discipline. See Docket No. 54 at 17; Docket No. 41 at 23, ¶¶ 109, 111. The Court finds that plaintiff has alleged sufficient facts to support this aspect of her First Amendment retaliation claim.
First, the complaint establishes that plaintiff engaged in protected First Amendment activity when she spoke to the news media about the city's improper withholding of records concerning air quality. See Docket No. 41 at 9-10, ¶¶ 39-41; Lane
Although defendants do not dispute that this type of activity generally qualifies for First Amendment protection, they contend that plaintiff's speech was not protected in this case because it concerned the contents of a privileged report. See Docket No. 49 at 12-13. On November 16, 2016, plaintiff filed a notice with the Colorado Court of Appeals stating that she had received an electronic disk from the court containing a file labeled "Sealed," and requesting the court's guidance as to whether the file had inadvertently been disclosed. Docket No. 49-1 at 2; see also Docket No. 41 at 8-9, ¶¶ 33, 36. On the same day, the Colorado Court of Appeals entered an order clarifying that the file had been disseminated due to a clerical error and directing the parties not to "download[], cop[y], otherwise retain[], or disseminate[]" the file "without further order of the Court." Docket No. 49-2 at 2; see also Docket No. 41 at 9, ¶ 37.
The Court assumes, without deciding, that the knowing disclosure of privileged records in violation of a court order does not constitute protected activity under the First Amendment. Cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) ("A litigant has no First Amendment right of access to information made available only for purposes of trying his suit."); Am. Motors Corp. v. Huffstutler, 61 Ohio St.3d 343, 575 N.E.2d 116, 120 (1991) (relying on Seattle Times Co. for the proposition that "[d]isclosure of confidential information does not qualify for protection against prior restraint under the First Amendment"). However, plaintiff asserts that she "did not disclose any portion of the Study in violation of any law or ethical rule," but merely "spoke publicly about her impressions of the Study." Docket
Plaintiff also alleges, however, that the Colorado Court of Appeals "confirmed" she was not legally barred from "sharing her publicly filed motions or speaking about the contents of the documents that had been inadvertently disclosed to her." Docket No. 41 at 9, ¶ 38. She states that she was never found to be in violation of any law or court order, id. at 11, ¶ 47, and that all three bar complaints filed against her were dismissed after it was determined that she had not engaged in unethical conduct. Id. at 19, ¶¶ 86-87.
Defendants argue in their reply brief that plaintiff's allegations should not be credited because (1) plaintiff acknowledged in her November 21, 2016 motion that the Court of Appeals had not addressed whether information from the privileged report could be used in the "present action or otherwise"; and (2) "[t]he fact that she did not have permission to disclose the report's contents is the only way to explain why the Court of Appeals moved forward with the City's request to find her in contempt." Docket No. 58 at 4-5.
The next issue is whether plaintiff has plausibly alleged an injury that would chill a person of ordinary firmness from continuing to engage in protected activity. See Shero, 510 F.3d at 1203. Plaintiff asserts that she suffered reputational harm and the "loss of at least one client opportunity" as a result of defendants' "false statements." Docket No. 41 at 20, ¶¶ 88; see also Docket No. 54 at 17. As discussed above, however, reputational injury is generally insufficient, by itself, to satisfy the second element of a First Amendment retaliation claim, see Eaton, 379 F.3d at 956, and plaintiff's allegation
Plaintiff has also shown that the defendants' actions were "substantially motivated as a response to [plaintiff's] exercise of constitutionally protected conduct." Shero, 510 F.3d at 1203. Although the four-month lapse between the alleged protected activity and defendants' actions regarding the formal grievances precludes plaintiff from relying solely on temporal proximity to satisfy the third element, see Docket No. 41 at 8-10, 16-17, ¶¶ 33-40, 71-72; cf. Lamb v. Montrose Cty. Sheriff's Office, 16-cv-03056-RM-GPG, 2019 WL 2866646, at *4 (D. Colo. July 3, 2019) ("Under Tenth Circuit precedent, temporal proximity alone is insufficient to establish causation if the retaliatory action occurs more than three months after protected activity." (citing Lauck v. Campbell Cty., 627 F.3d 805, 815 (10th Cir. 2010), plaintiff has also alleged that the grievances contained "false and misrepresentational statements about [plaintiff] including that [she] had violated one or more court orders, was not prompt in informing the court, and that [she] had unlawfully disclosed government records." Docket No. 41 at 17, ¶ 72. This allegation adequately establishes the third element of plaintiffs' retaliation claim. See Flores v. Victory Preparatory Acad., No. 18-cv-02916-RM-SKC, 2019 WL 4059157, at *6 (D. Colo. Aug. 28, 2019) (finding the third element of the plaintiffs' First Amendment retaliation claim satisfied where the plaintiffs alleged that the letter informing them they were being banned from the school campus referenced the plaintiffs' speech).
Because the individual defendants assert a qualified immunity defense, the next step is to determine whether plaintiff had a clearly established right to be free from the retaliatory filing of bar complaints. See Matson v. Hrabe, 612 F. App'x
Plaintiff also asserts claims for municipal liability, to which defendants' qualified immunity defense does not apply. Pyle v. Woods, 874 F.3d 1257, 1264 (10th Cir. 2017). As discussed above, allegations are sufficient to establish a municipal liability claim if they show a "municipal policy or custom" having a "direct causal link" to the asserted constitutional violation. Waller, 932 F.3d at 1283-84 (internal quotation marks omitted). Here, plaintiff alleges that "the Colorado Springs City Council voted to take formal action against Ms. Weise in all states that she holds professional licensure," which resulted in the city attorney's filing of formal actions against plaintiff in those states. Docket No. 41 at 16-17, ¶¶ 71-72. Plaintiff further states that the "Colorado Springs City Council is the final policymaker for Colorado Springs." Id. at 18, ¶ 80. The Court finds these allegations sufficient to demonstrate a municipal policy having a direct causal link to the alleged constitutional violation. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) ("No one has ever doubted ... that a municipality may be liable under § 1983 for a single decision by its properly constituted legislative body — whether or not that body had taken similar action in the past or intended to do so in the future — because even a single decision by such a body unquestionably constitutes an act of official government policy."); Waller, 932 F.3d at 1283 (stating that a municipal policy or custom may take the form of a decision by employees with final policy-making authority, or "the ratification by such final policymakers of the decisions... of subordinates to whom authority was delegated").
Plaintiff asserts that defendants violated her due process rights under the Fourteenth
A claim that the government has violated an individual's due process rights by damaging her reputation must satisfy the "stigma-plus" standard. See Martin Marietta Materials, Inc. v. Kan. Dep't of Transp., 810 F.3d 1161, 1184 (10th Cir. 2016) (internal quotation marks omitted). Under that standard, a plaintiff must show: "(1) governmental defamation and (2) an alteration in legal status." Id. (internal quotation marks omitted). When both elements are present, "the government may have violated a liberty interest that triggers a procedural due process protection" under the Fourteenth Amendment. Guttman v. Khalsa, 669 F.3d 1101, 1125 (10th Cir. 2012) (internal quotation marks and bracket omitted). "Damage to reputation alone, however, is not sufficient." Martin Marietta Materials, Inc., 810 F.3d at 1184.
Defendants argue that plaintiff cannot satisfy the elements of her stigma-plus claim because she has not alleged governmental defamation or an alteration in legal status. Docket No. 49 at 16-17. Because plaintiff's claim fails on the second element, the Court need not decide whether the allegations establish governmental defamation.
Plaintiff contends that defendants' conduct caused an alteration in legal status in two ways: (1) by "chang[ing]" her bar license from being in "good standing clear of any complaints, to under investigation"; and (2) by depriving plaintiff of specific employment opportunities. Docket No. 54 at 20. As a matter of law, neither of these allegations satisfies the stigma-plus standard.
The Tenth Circuit has held that being under investigation for professional misconduct does not constitute an alteration in legal status. See Setliff v. Memorial Hospital of Sheridan Cty., 850 F.2d 1384, 1396 (10th Cir. 1988). In Setliff, the Tenth Circuit rejected a claim that an investigation into the plaintiff's medical practice deprived him of a liberty interest without due process by "effectively destroy[ing] his ability to pursue his profession." Id. at 1394. The Court reasoned that, although "due process protects [an] individual's freedom to earn a living," the plaintiff's "employment status was never altered during the investigation," his "medical staff privileges were not modified or restricted," and his "allegation that the investigation caused him to be less attractive to other employers, and perhaps to patients, without more, [was] insufficient to establish the existence of a liberty interest." Id. at 1396. As in Setliff, plaintiff has not alleged that the investigations conducted by the state disciplinary offices restricted her ability to practice law. To the contrary, all three state bar complaints were
Plaintiff's allegation that she lost "one professional client opportunity" as a result of defendants' defamatory conduct is also insufficient. Docket No. 54 at 20; see also Docket No. 41 at 20, ¶ 88. As the Tenth Circuit has stated, "neither reputational harm nor resulting impairment of future employment opportunities are actionable" under the Fourteenth Amendment. Williams v. United States, 780 Fed. Appx. 657, 664 (10th Cir. 2019) (internal quotation marks omitted) (allegations that the plaintiff had experienced "lost standing," "damage to his good name and reputation," and "lost employment from several potential employers" was insufficient to demonstrate an alteration in legal status); see also Siegert v. Gilley, 500 U.S. 226, 234, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) (rejecting stigma-plus claim based on damage to future employment prospects); Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1269 (10th Cir. 1989) (stating that damage to the plaintiff's prospective employment opportunities was "too intangible" to constitute a deprivation of a liberty or property interest under § 1983, absent a showing that the plaintiff's "status as a lawyer and his existing legal rights [were] significantly altered"); Setliff, 850 F.2d at 1396 (stating that "circumstances which make an employee somewhat less attractive to employers" does not "establish the kind of foreclosure of opportunities amounting to a deprivation of liberty" (internal quotation marks omitted)).
500 U.S. at 234, 111 S.Ct. 1789. Because plaintiff's loss of "one professional client opportunity" "flow[ed] from" her alleged reputational harm, it is not actionable under the Fourteenth Amendment. See Williams, 780 Fed.Appx. at 664. Plaintiff's stigma-plus claim will therefore be dismissed.
In addition to her federal constitutional claims, plaintiff asserts claims against the individual defendants for defamation, intentional infliction of emotional distress, and abuse of process under Colorado law. See Docket No. 41 at 24-28, ¶¶ 117-39, 150-55. Defendants move for dismissal of the claims on the basis that: (1) they are barred by the Colorado Governmental Immunity Act ("CGIA"), Colo. Rev. Stat. §§ 24-10-101 et seq.; (2) the claims against Ms. Massey are barred by absolute immunity; and (3) the allegations do not support an abuse of process claim. See Docket No. 49 at 19-23.
"The notice provisions of the CGIA apply when federal courts hear Colorado tort claims under supplemental jurisdiction." Aspen Orthopaedics & Sports Medicine, LLC, 353 F.3d at 838. Under subsection one,
Colo. Rev. Stat. § 24-10-109(1). Colorado courts have "consistently [held] that complying with the notice of claim as set forth in section 24-10-109(1) is a jurisdictional prerequisite to suit." Aspen Orthopaedics & Sports Med., LLC, 353 F.3d at 839 (internal quotation marks and brackets omitted); see also, e.g., City & Cty. of Denver, 161 P.3d at 634; Finnie v. Jefferson Cty. Sch. Dist. R-1, 79 P.3d 1253, 1256 (Colo. 2003) (stating that the court has interpreted Colo. Rev. Stat. § 24-10-109(1) as a "jurisdictional prerequisite to suit" requiring "strict compliance with its terms"). The Tenth Circuit has further concluded that, "[i]n the context of a motion to dismiss, pleading compliance with the notice provisions of the CGIA is de facto jurisdictional." Aspen Orthopaedics & Sports Med., LLC, 353 F.3d at 840. In other words, "[w]hen a plaintiff fails to plead compliance with the CGIA, and a court addresses the case in the context of a motion to dismiss, the court must accept as a matter of `fact' that the plaintiff failed to comply with the notice provisions." Id.
In this case, plaintiff's complaint does not include any allegations that she complied with the notice provisions of the CGIA. She has therefore failed to demonstrate that the Court has jurisdiction over her state-law claims. Because it is not clear from the record that plaintiff will be unable to cure this pleading deficiency by amendment, plaintiff's state-law claims will be dismissed without prejudice. See Aspen Orthopaedics & Sports Med., LLC, 353 F.3d at 842; Vreeland v. Fisher, No. 13-cv-02422-PAB-KMT, 2014 WL 4854739, at *8 (D. Colo. Sept. 29, 2014).
For the foregoing reasons, it is
