Court Opinions: 10th Circuit Court of Appeals Opinions for the Week of March 28

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.


Brandt v. Crone

On July 26, 2018, Eric Brandt was inside the lobby of the Morgan County, Colorado, Sheriff’s Department seeking public records. Brandt’s “associate,” Abade Irizarry, joined him in the lobby and started “live-streaming the events to his youtube channel.”

Brandt began criticizing Sheriff’s Department officers and employees shown in a photo hanging on a wall. Speaking “to [Mr.] Irizarry and his viewers,” Brandt identified the pictured individuals and linked them to “events [he] had been investigating.”

Sheriff James Crone overheard Brandt’s comments, exited his office, and entered the lobby, “express[ing] his intolerance for [Brandt’s] descriptions of his staff members and employees.” Crone found the comments “loud” and “disparaging.” He told Brandt “that if [he] desired to continue making his comments then he could go outside” because the two female Sheriff’s Department clerks working in the lobby did “‘not need to hear’” Brandt’s “‘inappropriate’” comments. 

Brandt and Irizarry asked Crone “what specifically was inappropriate about their comments.” Crone replied they “were loud and noisy” and were “disrupting operations,” and he repeated, “‘If you want to make these comments, go outside and do it.’” Irizarry then challenged Crone to “‘name one [comment], in specific, that was offending.’” Crone identified a comment “‘about someone being sexually assaulted and things like that[,]’” and he explained that “‘the manner [in which] you’re saying it, these ladies don’t need to hear this.’” Crone then ordered Brandt and Irizarry to leave the building and he threatened to arrest them if they refused. They left the building, followed by Crone.

On Oct. 31, 2019, Brandt filed the instant Section 1983 case in federal district court. He pled four claims, alleging that Crone violated his free speech rights by “stopp[ing] [his] speech and prevent[ing] [him] from delivering and sharing his message of . . . corruption and abuse by members of the Morgan County law enforcement community,” retaliated against him by “halting [his] speech” and “preventing [him] from completing and submitting his public records requests,” unreasonably seized him “[b]y forcing [him] under threat of arrest to leave the lobby,” and “deprived [him of] his rights secured by [the] Constitution without the benefits of” due process, 

Brandt sought declaratory, injunctive and monetary relief, including punitive damages. Crone moved to dismiss asserting qualified immunity. Brandt filed a response. The district court granted the Sheriff’s motion, explaining that Brandt failed to plead a clearly established constitutional violation. 

In this pro se case, Brandt appealed from a district court order granting Crone’s motion to dismiss on the basis of qualified immunity. Exercising jurisdiction, The 10th Circuit Court of Appeals affirmed.

Heard v. Dulayev, et al.

In a two-count complaint, Gregory Heard sued Denver Police Officer Greg Dulayev and the City and County of Denver. Heard claimed Dulayev used excessive force in violation of the Fourth Amendment when he was tased by Dulayev on June 3, 2016 following a fight with another man in some bushes in Denver. Heard further claimed this alleged constitutional violation was a foreseeable consequence of the City’s alleged failure to train, supervise and discipline its employees, including Dulayev, with respect to the use of force. 

Dulayev and the City moved for summary judgment on Heard’s two claims. The district court denied the City’s motion, and the City appealed that order. Additionally, Heard moved to dismiss the City’s appeal for lack of jurisdiction. The district court found Heard didn’t “appear agitated or aggressive toward Officer Dulayev” and did not “demonstrate any . . . physical resistance or try to escape from Officer Dulayev.” The court also found “Heard was never given a reasonable opportunity to surrender peacefully and comply with Officer Dulayev’s bang-bang commands.”

Finding jurisdiction over part of Dulayev’s appeal, the 10th Circuit Court of Appeals denied in part Heard’s motion to dismiss. As to the substance of the appeal, the 10th Circuit held that Heard failed to show Dulayev’s use of the taser violated a constitutional right clearly established at the time where Dulayev had ordered Heard to crawl, threatened to use his taser and repeatedly ordered Heard to stop, but where Heard still continued to approach Dulayev. 

The 10th Circuit reversed the district court’s denial of summary judgment as to Dulayev, and remanded with instructions to grant Dulayev qualified immunity and enter judgment in Dulayev’s favor. However, because the court resolved the claim against Dulayev by finding that it was not clearly established that his conduct amounted to a constitutional violation, it declined to exercise pendent jurisdiction over the City’s appeal. The court granted Heard’s motion to dismiss as it relates to the City’s appeal, and remanded for further proceedings.

Horal v. IHR, Inc.

Jennifer Horal brought suit against her former employer, IHR, Inc., claiming IHR terminated her employment and took other actions against her in retaliation for a complaint she made about an IHR team building exercise. After discovery, the district court granted summary judgment to IHR. 

At an Oct. 7, 2016 meeting, general manager Peter Kim hosted a “Family Feud”-style team building game during which IHR sales employees guessed the most popular responses to various questions. The final question of the game asked: “Name a reason that your boss would give you a raise (other than that you work hard).” Horal answered by saying “get more education, get a certificate or degree,” but Kim said that answer was “not on the board.” Kim then revealed the top answer to be “dating your boss.” 

The “dating your boss” answer left Horal feeling uncomfortable. She was concerned that this “top answer” was meant to suggest that female sales consultants such as herself should sleep with their bosses to get ahead. A few days later, Horal approached dealership owner and general manager Michael Ward to complain about the “dating your boss” answer. She asked Ward, “[W]hat if a wom[a]n ever gets a promotion here, what will people think?” Ward told Horal that he suspected Kim had simply found some Family Feud questions on the internet and did not mean anything by the “dating your boss” answer. He also suggested that Horal “talk to [Kim] so that he knows he should be more careful with his content in the future,” and said that he would do the same. Finally, he asked Horal to “put it behind her and try and get some cars sold.”

Later that day, Ward sent a follow-up email to Horal summarizing what they had discussed. He apologized if Horal had been offended by Kim’s team building exercise, and, in response to Horal’s question about what people would think if a woman were ever promoted, he noted that IHR did have women in management positions. He further advised Horal that he had spoken to Kim on the phone, and that Kim had reported the questions used during the game were indeed randomly picked from the internet. Ward relayed that Kim was sorry if he had made anyone uncomfortable, as that was not his intent. Additionally, Ward told Horal that he had instructed Kim to be more careful and considerate when running sales meetings in the future. 

Subsequent conversations between Ward, Horal, Kim and an IHR human resources representative about the incident took place. 

Horal says that at some point after she first talked to Ward about the Family Feud game, her phone stopped receiving sales calls. She told management about the issue and, after about a week, IHR fixed Horal’s phone. Horal also claims that around this time her sales managers stopped referring sales leads to her.

It has historically been IHR’s practice to review a sales consultant’s performance during their first few months of employment. Near the end of Horal’s second month, sales manager Robert Thumel evaluated Horal noting her sales were the lowest over the two months she’d worked there even compared to new sales staff with no prior experience and that she had a history of not following dealership protocols. Based on his observations, Thumel also felt Horal “lacked energy, was not engaged[,] and was often on her cell phone.” For these reasons, Thumel says, he decided to terminate Horal’s employment.

Before firing Horal, Thumel advised Ward of his decision. Thumel says that “Ward did not object to the termination, but had no other involvement in [the] decision.” Thumel also states that Kim “had absolutely no role or involvement in [the] decision to terminate Ms. Horal,” and that “[his] decision to terminate Ms. Horal’s employment had absolutely nothing to do with any issues or concerns she had with Peter Kim’s Family Feud sales presentation or any concerns or complaints she may have made to others about the presentation.”

Exercising jurisdiction, the 10th Circuit affirmed the district court order granting summary judgment to IHR.

United States v. Gess

Joshua Gess pleaded guilty to possession of a firearm and ammunition by a prohibited person in exchange for the government’s agreement to dismiss the remaining charges and to recommend he be sentenced to 51 months in prison. 

Gess was advised both in writing and orally at the change of plea hearing that based on his criminal history, the statutory maximum prison sentence was 10 years. As part of the plea agreement, Gess waived his right to appeal “any matter in connection with [his] prosecution, conviction, or sentence” unless the government appealed the sentence, or the sentence exceeded either the 10-year maximum or the advisory sentencing guideline range applicable to a total offense level. 

Other than challenges based on alleged prosecutorial misconduct or ineffective assistance of counsel, Gess also “waive[d] the right to challenge [his] prosecution, conviction, or sentence in any collateral attack[,] including” a motion under Section 2255 of the U.S. Constitution. 

Both by signing the written plea agreement and in his responses to questions from the court during the change of plea hearing, Gess acknowledged that he was entering his plea knowingly and voluntarily and that he understood its consequences, including the possible sentences and the appeal waiver. The court accepted Gess’s plea as having been knowingly and voluntarily entered.

At the sentencing hearing, the court determined the applicable guideline range for Gess factoring in his criminal history score was 41 to 51 months. The court then sentenced him to 35 months in prison. Despite receiving a sentence that was below both the 10-year statutory maximum and the applicable guideline range, Gess filed a notice of appeal. His docketing statement indicates that he intended to appeal his conviction and sentence based on ineffective assistance of counsel, denial of release from pretrial custody, violation of an oral plea agreement and violation of his right to a speedy trial.

The 10th Circuit Court of Appeals granted the government’s motion to enforce the appeal waiver in Gess’s plea agreement and dismissed the appeal.

Greene v. Commissioner, SSA

Cedric Greene is a California resident who is subject to filing restrictions in this and numerous other courts due to his abusive litigation history. The district court imposed its filing restrictions on Greene because he had filed some nine other actions, many of which were dismissed for improper venue, lack of jurisdiction or both. In this appeal, he challenged the dismissal of his pro se action for failure to comply with the district court’s filing restrictions. 

The 10th Circuit Court of Appeals affirmed the district court’s judgment and denied Greene’s request to proceed on appeal without prepayment of fees and costs.

DeWalt v. United States

Rodney DeWalt, a pro se litigant, appealed the district court’s dismissal of his Federal Tort Claims Act lawsuit for lack of subject-matter jurisdiction. 

This case is rooted in two unsuccessful lawsuits DeWalt previously brought against the city of Overland Park, Kansas. Frustrated with the federal judges’ disposition of his prior proceedings, DeWalt filed the present action against the U.S. asserting three FTCA claims. He contends the federal judges during his prior lawsuits committed the following torts: abuse of process, intentional infliction of emotional distress and negligence.

The 10th Circuit Court of Appeals noted DeWalt failed to identify any analogous claims under Kansas law where persons acting in like circumstances — adjudicating lawsuits — were held liable for intentional infliction of emotional distress or negligence. This is not surprising, the court reasoned, because the adjudication of federal lawsuits is a unique activity that the 10th Circuit said it cannot — at least, independently — analogize to any situation a private person may find themselves in. 

The 10th Circuit found that because DeWalt failed to show the federal judges could have been liable under Kansas law if they had been private individuals, he failed to meet his burden to show Congress consented to this suit. The 10th Circuit ruled it lacked jurisdiction to hear DeWalt’s claims and affirmed the district court’s judgment.

Crosby v. Warden Admax

Gregory Crosby, a federal prisoner proceeding pro se, appealed the district court’s denial of his petition for a writ of habeas corpus and also sought leave to proceed in forma pauperis. 

Crosby is serving a 262-month sentence at the United States Penitentiary ADX Florence. He has previously filed 17 appeals before the 10th Circuit Court of Appeals, three of which are related to this appeal. In this case, Crosby again petitioned for Section 2241 relief under the U.S. Constitution. He sought credit for participation in evidence-based recidivism reduction or EBRR programs and a transfer to a facility nearer to his release residence. 

The district court held Crosby’s EBRR claim was not ripe because the Bureau of Prisons had until Jan. 15, 2022, to phase in the EBRR programs. It also held his transfer claim was neither subject to judicial review under the First Step Act nor a valid habeas claim. Crosby timely appealed. 

Crosby conceded his Section 2241 petition challenges his conditions of confinement and not the legality of his custody. He nonetheless argued the district court erred when it declined to sua sponte convert his petition into a Bivens action. Because he did not raise this issue, the 10th Circuit Court of Appeals reviewed for plain error and affirmed and denied his motion to proceed in forma pauperis.

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