Carbajal v. Morrissey

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 30, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
VICTORIA CARBAJAL; DEAN
CARBAJAL; LUIS LEAL,

Plaintiffs - Appellants,

v. No. 18-1132
(D.C. No. 1:12-CV-03231-PAB-KLM)
BETH McCANN, District Attorney for the (D. Colo.)
Second Judicial District in her official
capacity; * MITCHELL R. MORRISSEY,
in his individual capacity; JEFFREY
WATTS, Investigator for the Second
Judicial District, in his individual capacity;
ROBERT FULLER, Investigator for the
Second Judicial District, in his individual
capacity; REBEKAH MELNICK, Deputy
District Attorney for the Second Judicial
District, in her individual capacity; LARA
MULLIN, Deputy District Attorney for the
Second Judicial District, in her individual
capacity; MILES FLESCHE, District
Administrator and Clerk for the Second
Judicial District, in his official capacity;
ANNE MANSFIELD, District Court Judge
for the Second Judicial District, in her
official and individual capacities;
MICHAEL MARTINEZ, District Court
Judge for the Second Judicial District, in
his official and individual capacities;
ANDREW KEEFER, Deputy Sheriff for
the Denver Sheriffs Department, in his
official and individual capacities;

*
Pursuant to Fed. R. App. P. 43(c)(2), Beth McCann is substituted for
Mitchell R. Morrissey, former District Attorney for the Second Judicial District, as
an appellant in this action with respect to the claims brought against Mr. Morrissey in
his official capacity.
 MICHAEL SIMPSON, Detective for the
Denver Police Department, in his official
and individual capacities; JAY LOPEZ,
Detective for the Denver Police
Department; in his official and individual
capacities; GILBERT HAGAN, Detective
for the Denver Police Department, in his
official and individual capacities; CAROL
DWYER, a co-conspirator with the Second
Judicial District Attorneys Office, in her
individual capacity; WELLS FARGO, a
corporation; JANELL KAVANAUGH,
Vice President/investigator for Wells
Fargo, in her individual capacity; BRIAN
BERARDINI, a co-conspirator with the
Second Judicial District Attorneys Office,
in his individual capacity; MICHAEL
CARRIGAN, a co-conspirator with the
Second Judicial District Attorneys Office,
in his individual capacity; MARIE
WILLIAMS, a co-conspirator with the
Second Judicial District Attorneys Office,
in her individual capacity; PHILIP J.
WEISER, Attorney General for the State of
Colorado in his official capacity; ** JOHN
SUTHERS, in his individual capacity,

Defendants - Appellees.
_________________________________

**
Pursuant to Fed. R. App. P. 43(c)(2), Philip J. Weiser is substituted for John
Suthers, former Attorney General for the State of Colorado, as an appellant in this
action with respect to the claims brought against Mr. Suthers in his official capacity.

2
 ORDER AND JUDGMENT ***
_________________________________

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
_________________________________

Victoria Carbajal, Luis Leal, and Dean Carbajal, a Colorado inmate, all

appearing pro se, 1 appeal from the district court’s entry of final judgment in favor of

Defendants in this 42 U.S.C. § 1983 action. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further

proceedings.

I. Background

This case stems from Colorado’s criminal prosecution of Mr. Carbajal in 2010 and

2011. The Colorado Court of Appeals summarized the result in its affirmance on direct

appeal:

The defendant, Dean Carbajal, and the victim dated for almost a year before
they broke up in early 2010. Soon after the breakup, a court issued a
protection order, prohibiting Carbajal from contacting the victim. Yet,
Carbajal followed the victim for the next few months, showing up at her
house and workplace. One night, Carbajal went to the victim’s house and,

***
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1
Because Plaintiffs appeal pro se, we construe their filings liberally but do not
serve as their advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,
840 (10th Cir. 2005).

3
 according to her neighbors, was holding a knife, threatening to kill himself.
The victim’s neighbor called the police, who later found and arrested
Carbajal.

A jury found Carbajal guilty of five counts of protection order violation,
five counts of violating bail bond conditions, two counts of burglary, two
counts of criminal trespass, one count of kidnapping, and two counts of
harassment by stalking.

People v. Carbajal, No. 12CA0410, slip op. at 1 (Colo. App. June 30, 2016). 2

But the jury acquitted Mr. Carbajal of one charged burglary count. Mr. Carbajal,

together with his mother, Ms. Carbajal, and family friend, Luis Leal, then brought this

wide-ranging action. They assert claims against police, prosecutors, judicial officers, and

others for their alleged roles in connection with the burglary charge that did not result in a

conviction and other related actions.

The following aspects of Mr. Carbajal’s prosecution pertain to the arguments

raised on appeal.

When the prosecutor Defendants initially filed charges against Mr. Carbajal, they

did so by filing five cases in Denver County Court in August 2010. The County Court

dismissed four of the cases by September 24, 2010, and transferred the remaining case to

the Denver District Court. The prosecutors then moved to amend the complaint in the

transferred case to include the charges brought in the dismissed cases. Mr. Carbajal

2
Mr. Carbajal filed an application for a writ of habeas corpus under 28 U.S.C.
§ 2254 to challenge his conviction. The District of Colorado denied his application.
Carbajal v. Williams, No. 18-cv-01501-PAB, 2019 WL 5084092, at *15 (D. Colo.
Oct. 8, 2019). Mr. Carbajal is seeking to challenge that denial in appeal
No. 19-1445, which remains pending.

4
claims that by filing the four dismissed cases—he calls them “shell” cases—the

prosecution Defendants abused the criminal process. See Aplt. Opening Br. at 19.

As Mr. Carbajal prepared to attend an unrelated criminal case in January 2011, he

alleges that Deputy Keefer conspired with investigator Watts and prosecutor Mullin to

harass and use force against him to prevent him from mounting a defense and in

retaliation for civil litigation he filed against Watts and others. Mr. Carbajal claims that

Deputy Keefer then used excessive physical force against him.

In February 2011, prosecutors filed a motion to add charges related to an alleged

July 2010 burglary. Mr. Carbajal contends that the investigators and prosecutors knew

that he did not commit burglary in July 2010 and that by pursuing these charges various

Defendants engaged in malicious prosecution and abused the criminal process.

Later in 2011, prosecutors filed contempt of court charges against Ms. Carbajal

and Mr. Leal due to their alleged failure to appear at a hearing in violation of subpoenas.

Prosecutors later moved to dismiss these charges. Ms. Carbajal and Mr. Leal now claim

that various Defendants engaged in malicious prosecution and abused the criminal

process by pursuing these charges.

The magistrate judge recommended that all claims against all parties be dismissed

at the pleading stage, with the lone exception of the excessive force claim against Deputy

Keefer in his individual capacity. The district judge adopted this recommendation and

granted dismissal of some claims under Rule 12(b)(1) and the remainder under Rule

12(b)(6). Deputy Keefer then sought dismissal of the remaining claim based on

Mr. Carbajal’s failure to exhaust applicable administrative remedies. The district court

5
held an evidentiary hearing on Deputy Keefer’s request and found that Mr. Carbajal did

not exhaust his administrative remedies. This appeal followed.

Mr. Carbajal filed a motion to proceed on appeal without prepayment of costs and

fees. We then issued an order to show cause why this appeal should not be dismissed as

to Mr. Carbajal due to his failure to pay the filing fee as required by 28 U.S.C.

§ 1915(b)(1), given Mr. Carbajal’s possible prior “strikes” under the Prison Litigation

Reform Act of 1995 (PLRA). 3

II. Discussion

A. Mr. Carbajal’s PLRA Strikes

Before addressing Mr. Carbajal’s appeal, we consider whether he has

accumulated three strikes and must first prepay the appellate filing fee.

Congress passed the PLRA to address the “sharp rise in prisoner litigation in

the federal courts.” Woodford v. Ngo, 548 U.S. 81, 84 (2006). The PLRA included

several measures “designed to prevent sportive filings in federal court.” Skinner v.

Switzer, 562 U.S. 521, 535 (2011). Under the PLRA, prisoners obtain a “strike”

against them for purposes of future in forma pauperis eligibility when their “action or

appeal in a court of the United States . . . was dismissed on the grounds that it is

frivolous, malicious, or fails to state a claim upon which relief may be granted . . . .”

28 U.S.C. § 1915(g); see also Childs v. Miller, 713 F.3d 1262, 1265 (10th Cir. 2013).

Once a prisoner accumulates three strikes, he must prepay the entire filing fee before

3
Ms. Carbajal and Mr. Leal filed their own motions to proceed in forma
pauperis. None of the appellants has paid the filing fee.
6
federal courts may consider his civil actions and appeals. Hafed v. Fed. Bureau of

Prisons, 635 F.3d 1172, 1175–76 (10th Cir. 2011), abrogated on other grounds by

Coleman v. Tollefson, 575 U.S. 532 (2015).

In our order to show cause, we identified five possible prior strikes against

Mr. Carbajal.

1. Carbajal v. City & County of Denver

In Carbajal v. City & County of Denver, No. 1:11-cv-02826-LTB (D. Colo.

Feb. 23, 2012), the district court dismissed Mr. Carbajal’s action under Fed. R. Civ.

P. 41(b) for failure to comply with Fed. R. Civ. P. 8 after providing him with two

chances to amend his complaint to rectify the issues identified by the court. See

Carbajal v. City & Cty. of Denver, 502 F. App’x 715, 716 (10th Cir. 2012).

Ordinarily, dismissal for failure to prosecute under Rule 41(b) does not count as a

strike under § 1915(g), see Hafed, 635 F.3d at 1179, and we decline to assess one

against Mr. Carbajal related to case No. 1:11-cv-02826.

2. Carbajal v. Hotsenpiller

In Carbajal v. Hotsenpiller, No. 1:12-cv-02007-LTB (D. Colo. Sept. 5, 2012),

Mr. Carbajal “filed a § 1983 complaint in federal district court asserting five claims

against numerous individuals involved in his state case.” Carbajal v. Hotsenpiller,

524 F. App’x 425, 427 (10th Cir. 2013). “The district court held that three of the

claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994), because success on

those claims would imply the invalidity of his state convictions.” 524 F. App’x at

427 (parallel citations omitted). The district court dismissed Mr. Carbajal’s

7
remaining two claims under Younger v. Harris, 401 U.S. 37 (1971), which mandates

that federal courts abstain from hearing certain claims that involve important state

interests and could be brought in a pending state proceeding. See 524 F. App’x at

427–28. While the Tenth Circuit has not yet addressed the issue, the Ninth Circuit

has held that a Younger dismissal does not count as a strike because such a dismissal

is comparable to a dismissal for lack of subject matter jurisdiction. Washington v.

Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1058 (9th Cir. 2016). A dismissal

generally only counts as a strike if all claims in the action are dismissed on a

§ 1915(g) ground. Thomas v. Parker, 672 F.3d 1182, 1183 (10th Cir. 2012).

Because the district court dismissed some of the claims in case No. 1:12-cv-02007

under Younger, we decline to assess a strike for this dismissal. Cf. id. at 1184

(holding unexhausted claims do not preclude assessing a strike).

3. Carbajal v. Holman

In Carbajal v. Holman, No. 1:12-cv-00205-LTB (D. Colo. Mar. 27, 2012), the

district court dismissed all Mr. Carbajal’s claims under Younger. We affirmed the

district court’s Younger dismissal as to most claims but affirmed its dismissal of

other claims on the alternative grounds that Mr. Carbajal failed to state a claim upon

which relief could be granted and remanded for dismissal of those claims with

prejudice. See Carbajal v. Holman, No. 12-1152, slip op. at 3 (10th Cir. Sept. 25,

2012) (unpublished). Since we affirmed the district court’s dismissal of some of the

claims in case No. 1:12-cv-00205 under Younger, we decline to assess a strike for

this dismissal.

8
 4. Carbajal v. Denver County Board of County Commissioners

In Carbajal v. Denver County Board of County Commissioners,

No. 1:08-cv-02679-ZLW-BNB (D. Colo. Mar. 20, 2009), the district court dismissed

the case at Mr. Carbajal’s request. A voluntary dismissal does not count as a PLRA

strike. See Hafed, 635 F.3d at 1176 (stating that, under the PLRA, a dismissal counts

as a strike when an action or appeal “is dismissed as frivolous, as malicious, or for

failure to state a claim”).

5. Carbajal v. O’Neill

We dismissed Mr. Carbajal’s appeal in Carbajal v. O’Neill, 694 F. App’x 666

(10th Cir. 2017), as frivolous and expressly “assess[ed] one ‘strike.’” Id. at 669.

Carbajal had one strike prior to filing this appeal and we therefore will not

dismiss it under the PLRA.

B. Malicious Prosecution Claims

1. Legal Framework

a. Malicious Prosecution

Under our cases, a § 1983 malicious prosecution claim includes the
following elements: (1) the defendant caused the plaintiff’s continued
confinement or prosecution; (2) the original action terminated in favor
of the plaintiff; (3) no probable cause supported the original arrest,
continued confinement, or prosecution; (4) the defendant acted with
malice; and (5) the plaintiff sustained damages.

Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008). “A malicious-prosecution

claim is not cognizable until all the elements are satisfied.” Margheim v. Buljko,

855 F.3d 1077, 1085 (10th Cir. 2017) (internal quotation marks omitted).

9
 b. Pleading Standards

We review a district court’s dismissal for failure to state a claim under
Rule 12(b)(6) de novo. In so doing, we accept all of [a plaintiff’s]
well-pleaded allegations as true and view them in the light most
favorable to [the plaintiff].

But before we accept [a plaintiff’s] allegations as true, they must be
well-pleaded allegations. Determining whether a complaint contains
well-pleaded facts sufficient to state a claim is a context-specific task
that requires the reviewing court to draw on its judicial experience and
common sense. The court must determine whether the plaintiff has
pleaded enough facts to state a claim to relief that is plausible on its
face, not just conceivable. Though a complaint need not provide
detailed factual allegations, it must give just enough factual detail to
provide fair notice of what the claim is and the grounds upon which it
rests. Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements do not count as well-pleaded facts. If, in
the end, a plaintiff’s well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint fails to
state a claim.

Warnick v. Cooley, 895 F.3d 746, 750–51 (10th Cir. 2018) (citations, ellipsis, and

internal quotation marks omitted).

c. Prosecutorial Immunity

“State prosecutors are entitled to absolute immunity against suits brought

pursuant to § 1983 for activities intimately associated with the judicial process, such

as initiating and pursuing criminal prosecutions.” Gagan v. Norton, 35 F.3d 1473,

1475 (10th Cir. 1994) (emphasis, ellipsis, and internal quotation marks omitted).

They enjoy such immunity even if it leaves “the genuinely wronged defendant

without civil redress against a prosecutor whose malicious or dishonest action

deprives him of liberty.” Imbler v. Pachtman, 424 U.S. 409, 427 (1976). But “[a]

prosecutor’s administrative duties and those investigatory functions that do not relate

10
to an advocate’s preparation for the initiation of a prosecution or for judicial

proceedings are not entitled to absolute immunity.” Buckley v. Fitzsimmons,

509 U.S. 259, 273 (1993). For example, a prosecutor is not entitled to immunity

“when [she] is acting as a witness rather than an advocate.” Nielander v. Bd. of Cty.

Comm’rs, 582 F.3d 1155, 1164 (10th Cir. 2009).

“We review de novo a district court’s conclusion on the question of absolute

immunity.” Gagan, 35 F.3d at 1475.

2. Malicious Prosecution: Contempt

The operative complaint avers that the prosecutors’ actions in bringing

contempt of court charges against Ms. Carbajal and Mr. Leal violated their Fourth

and Fourteenth Amendment rights. According to Plaintiffs:

The prosecution . . . worked . . . to manufacture false contempt charges,
premised on the fallacy that Mr. Leal and Ms. Carbajal refused to
appear at trial to testify pursuant to a subpoena. In furtherance of this
conspiracy Melnick presented false information ex parte to the Court
and in an affidavit stating that Ms. Carbajal and Mr. Leal failed to
comply with a subpoena and appear at court for needed testimony, and
intentionally omitted information that no trial existed . . . .

R. Vol. III at 97.

The district court found that “the only non-conclusory allegations relevant to

[this] claim[]” concerned prosecutor Melnick’s actions in securing warrants to arrest

Ms. Carbajal and Mr. Leal. Id. Vol. IV at 240 & n.8. And the court concluded that

prosecutor Melnick is entitled to absolute prosecutorial immunity for those actions

because they were “‘intimately associated with the judicial phase of the criminal

process.’” Id. (quoting Imbler, 424 U.S. at 430). Plaintiffs argue that the district

11
court erred because the prosecutors “acted as investigators and complaining

witnesses.” Aplt. Opening Br. at 13. In particular, they point out that the complaint

alleges prosecutor “Melnick presented false information . . . to the Court . . . in an

affidavit.” Id. (quoting R. Vol. III at 97). The Supreme Court held in Kalina v.

Fletcher, 522 U.S. 118, 125–31 (1997), that prosecutors do not have absolute

prosecutorial immunity for their acts as a witness. While we generally agree with the

district court’s conclusion, we reverse the district court’s application of the doctrine

of prosecutorial immunity to the alleged testimony by prosecutor Melnick and

remand for further proceedings on this claim. 4

3. Malicious Prosecution: Burglary

The complaint also avers that the prosecutors and Detective Hagan violated

Mr. Carbajal’s Fourth and Fourteenth Amendment rights by bringing false burglary

charges against Mr. Carbajal.

a. Prosecutors

The district court dismissed this claim with respect to the prosecutor

Defendants by applying the doctrine of prosecutorial immunity.

Mr. Carbajal argues that the district court incorrectly found that the

prosecutors’ actions fell within the bounds of absolute immunity by pointing to

4
To the extent Plaintiffs claim prosecutor Melnick violated their constitutional
rights by presenting an allegedly false affidavit sworn to by someone else, she enjoys
absolute prosecutorial immunity from that claim. See, e.g., Imbler, 424 U.S. at 413–
17, 431 (affirming application of prosecutorial immunity where the prosecutor
knowingly used perjured testimony).
12
several actions he claims fell outside “the aegis of absolute immunity.” Buckley,

509 U.S. at 276. But the prosecutors took the actions Mr. Carbajal decries after they

filed numerous charges against Mr. Carbajal and “within the continuum of initiating

and presenting a criminal case.” Warnick, 895 F.3d at 751 (internal quotation marks

omitted). These include the initiation of allegedly “groundless” additional charges,

R. Vol. III at 104, and the presentation of allegedly “false . . . and perjurious

testimony,” id., all with the alleged “intent and understanding to wrongfully

prosecute Mr. Carbajal,” id. Cf. Williams v. Hartje, 827 F.2d 1203, 1209 (8th Cir.

1987) (“The decision of a prosecutor to file criminal charges is within the set of core

functions which is protected by absolute immunity. This is so even if the prosecutor

makes that decision in a consciously malicious manner, or vindictively, or without

adequate investigation, or in excess of his jurisdiction.” (citation omitted)).

To the extent Mr. Carbajal identifies prosecutorial actions that arguably fall

outside the aegis of absolute immunity, his non-specific conclusory allegations fail to

state a claim upon which relief can be granted. For example, the complaint avers that

the prosecutors “systematically manufacture[d] inculpatory evidence” and

“conspire[ed] to fabricate probable cause.” R. Vol. III at 104. 5 But Mr. Carbajal

5
In their opening brief, plaintiffs also argue that absolute immunity does not
extend to the prosecutors’ actions in (1) “participat[ing] in and providing . . . legal
advice to investigators,” (2) “investigat[ing] [the] burglary charge and questioning . .
. Holguin,” (3) “prepar[ing] and review[ing] . . . affidavits supporting probable
cause,” (4) “prepar[ing] and review[ing] . . . affidavits for [a] search warrant” and
“participat[ing] in the search,” (5) “destr[oying] . . . notes . . . that supported
Mr. Carbajal’s innocence and entrapment by Holguin,” and (6) “harassing and
intimidat[ing] . . . witnesses to deter their exposure of Holguin’s extortionate
13
fails to identify any inculpatory evidence the prosecutors manufactured. Nor does he

explain how they conspired to fabricate probable cause. “The prosecutors cannot

reasonably respond to such a conclusory assertion of misdeeds.” Warnick, 895 F.3d

at 753.

b. Detective Hagan

The district court dismissed the burglary-related malicious prosecution count

against Detective Hagan by applying the doctrine of qualified immunity.

“The doctrine of qualified immunity shields government officials performing

discretionary functions from liability for damages ‘insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable

person would have known.’” Boles v. Neet, 486 F.3d 1177, 1180 (10th Cir. 2007)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Police officers such as

Detective Hagan generally do not violate a defendant’s constitutional rights via

malicious prosecution because “the chain of causation is broken by an indictment.”

Taylor v. Meacham, 82 F.3d 1556, 1564 (10th Cir. 1996) (internal quotation marks

omitted). But they can be liable for malicious prosecution if they misrepresent facts

or conceal them from the prosecutor. See Pierce v. Gilchrist, 359 F.3d 1279, 1292

activities and illegal accessing of Plaintiffs’ Wells Fargo accounts.” Aplt. Opening
Br. at 15–16. Plaintiffs do not cite to their complaint or otherwise specify where
these allegations are contained therein. Moreover, we could not locate these
allegations in their complaint. Thus, we will not consider these allegations. See
Phillips v. James, 422 F.3d 1075, 1081 (10th Cir. 2005) (observing that in the
absence of references to the record in a party’s brief, the court “will not sift through
the record to find support for” the claimant’s arguments).
14
(10th Cir. 2004). We review de novo a district court’s conclusion on the question of

qualified immunity. Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010).

The district court found that “Mr. Carbajal has failed to make anything other

than conclusory allegations that [Detective] Hagan misrepresented or concealed facts

from the prosecutors.” R. Vol. IV at 165. While Mr. Carbajal summarily challenges

this conclusion on appeal, he does not explain why it is wrong, nor does he cite to

specific alleged facts from the complaint that would undermine it. Accordingly, we

affirm the district court’s conclusion.

C. Abuse of Process Claims

The district court dismissed each of the complaint’s abuse of process claims as

untimely.

“A hodgepodge of state and federal law governs the timeliness of claims under

42 U.S.C. § 1983.” Mondragón v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008).

Federal law determines when “the claim accrues and the limitations period starts to run.”

Id. But the length of the limitations period “is drawn from the personal-injury statute of

the state in which the federal district court sits.” Id. State law also “governs any tolling

of that period, except that federal law might also allow additional equitable tolling in rare

circumstances.” Id. (citation omitted).

“We have made clear that the statute of limitations for § 1983 actions brought in

Colorado is two years from the time the cause of action accrued.” Fogle v. Pierson,

435 F.3d 1252, 1258 (10th Cir. 2006). “A § 1983 action accrues when facts that would

support a cause of action are or should be apparent.” Id. (internal quotation marks

15
omitted). But a plaintiff does not need to “know all of the evidence ultimately relied on

for the cause of action to accrue.” Baker v. Bd. of Regents, 991 F.2d 628, 632 (10th Cir.

1993). And “a plaintiff must use reasonable diligence in seeking to discover facts giving

rise to a claim for relief.” Alexander v. Oklahoma, 382 F.3d 1206, 1216 (10th Cir. 2004).

“While the statute of limitations is an affirmative defense, when the dates

given in the complaint make clear that the right sued upon has been extinguished, the

plaintiff has the burden of establishing a factual basis for tolling the statute.” Aldrich

v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980). “We review de

novo the dismissal of an action under Rule 12(b)(6) based on the statute of

limitations.” Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir. 2010).

a. Abuse of Process Based on Filing of “Shell” Cases

Plaintiffs claim that the prosecutor Defendants abused the criminal process by

initially asserting criminal charges against Mr. Carbajal via the so-called “shell” cases

filed in August 2010 in Denver County Court. Aplt. Opening Br. at 19. The complaint

does not allege that Mr. Carbajal failed to receive notice of the cases’ commencement

and even alleges that Mr. Carbajal “timely filed a motion for a preliminary hearing” in

these cases. R. Vol. III at 93. It further notes that the cases were all dismissed by

September 24, 2010.

Any abuse of process claim related to these cases accrued, at the latest, in

September 2010 when the court dismissed the last case. Because Plaintiffs filed the

16
initial complaint in this action on December 8, 2012, 6 this abuse of process claim accrued

outside of the two-year limitations period and the district court properly dismissed it on

statute of limitations grounds.

Mr. Carbajal argues on appeal that the district judge should have equitably tolled

the statute of limitations because the prosecutor Defendants concealed their abuse of

process from him by failing to notify him when the cases were dismissed. But he does

not provide us with any citation showing he made this argument in the district court and

our review of the record convinces us that he did not make a “timely and specific”

objection to the magistrate judge’s failure to apply equitable tolling. United States v.

2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). He therefore did not preserve this

issue for review, and we conclude that the interests of justice do not dictate lifting the bar

of appellate review here. See id. at 1060–61.

Mr. Carbajal further argues for the first time on appeal that the limitations period

to bring this claim was tolled during the pendency of a prior action that allegedly

included this claim before being dismissed without prejudice due to plaintiffs’ failure to

comply with Fed. R. Civ. P. 8. 7

6
The district court found that Plaintiffs filed the initial complaint on
December 8, 2012, by applying the prison mailbox rule. No party disputes this
finding.
7
Mr. Carbajal seeks plain error review of the district court’s failure to adopt
this argument. See, e.g., Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130
(10th Cir. 2011) (“If a newly raised legal theory is entitled to appellate review at all
. . . it may form a basis for reversal only if the appellant can satisfy the elements of
the plain error standard of review.”).

17
 Generally, when a statute does not specifically allow for the tolling of a
statute of limitations during the pendency of a prior action, a party cannot
deduct from the period of the statute of limitations applicable to his case the
time consumed by the pendency of an action in which he sought to have the
matter adjudicated, but which was dismissed without prejudice as to him.

King v. W. R. Hall Transp. & Storage Co., 641 P.2d 916, 920 (Colo. 1982); see also

SMLL, L.L.C. v. Peak Nat’l Bank, 111 P.3d 563, 565 (Colo. App. 2005) (“Absent a

specific statutory provision, Colorado law does not allow for the tolling of a statute of

limitations during the pendency of a prior action.”). Cf. Wallace v. Kato, 549 U.S. 384,

396 (2007) (rejecting argument that “equitable tolling should apply so long as the

issues that a § 1983 claim would raise are being pursued in state court” (brackets and

internal quotation marks omitted)). Mr. Carbajal does not cite a statutory provision that

would toll the limitations period in these circumstances and our independent research has

not uncovered one. 8

b. Abuse of Process Based on Burglary Charge

Plaintiffs further claim that the Defendants Hagan, Watts, Mullin, Melnick, and

Morrissey 9 abused the criminal process by filing an allegedly frivolous burglary charge

8
Colorado does have a savings statute that extends the limitations period by 90
days, but it only applies where the prior action “is terminated because of lack of
jurisdiction or improper venue.” Colo. Rev. Stat. § 13-80-111(1).
9
The complaint also names Judge Mansfield as a Defendant on this charge. In
their reply in support of their motion to file an oversize opening brief, Plaintiffs clarified
that they “have only appealed claims directed at the Denver and Prosecution
Defendants.” Reply to Defs. Resp. to Court’s Order at 1. Judge Mansfield and others
then filed unopposed motions to dismiss this appeal as it pertains to them but did not file
substantive opposing briefs. We treat Plaintiffs’ statement as a waiver of their claims
18
against Mr. Carbajal. The magistrate judge held that the statute of limitations barred this

claim because the “allegations underlying this claim revolve around events primarily

occurring in July 2010.” R. Vol. IV at 197. Mr. Carbajal argues on appeal that while the

alleged burglary took place in July 2010, prosecutors did not file the criminal charge that

undergirds his abuse of process claim until February 17, 2011. But he does not provide

us with any citation showing he made this argument to the district judge and our review

of the record convinces us that he did not make a “timely and specific” objection to the

magistrate judge’s finding on this claim. 2121 E. 30th St., 73 F.3d at 1060. He

therefore did not preserve this issue for review.

We could nonetheless consider this issue on appeal if we concluded that the

interests of justice demanded it. See id. at 1060–61. In determining whether the interests

of justice warrant lifting the bar to appellate review, we consider several factors,

including “a pro se litigant’s effort to comply [with the requirement to make a timely and

specific objection to the magistrate judge’s report], the force and plausibility of the

explanation for his failure to comply, and the importance of the issues raised,” Morales-

Fernandez v. INS, 418 F.3d 1116, 1120 (10th Cir. 2005), “as well as the merits of the

claims asserted,” Wirsching v. Colorado, 360 F.3d 1191, 1197 (10th Cir. 2004).

Mr. Carbajal apparently made no effort to comply and does not provide any explanation

for his failure to comply. He also does not make any argument about the importance of

against Judge Mansfield. See United States v. McGehee, 672 F.3d 860, 873 (10th Cir.
2012) (“[A] party that has waived a right is not entitled to appellate relief.”).

19
the issues raised or the merits of his claim, which largely relies on the same alleged facts

as the malicious prosecution claim that the district court dismissed by applying the

doctrines of prosecutorial and qualified immunity. Thus, we conclude that the interests

of justice do not warrant lifting the bar to appellate review.

D. Excessive Force Claims Against Prosecutor Mullin and Investigator Watts

The complaint alleges:

Watts, Mullin and Keefer conversed, by Mr. Carbajal, about the fact that he
was proceeding pro se, and agreed to retaliate against Mr. Carbajal through
the use of force and harassment, and in furtherance of this shared mind set
[sic] to prevent Mr. Carbajal from fairly defending his innocence . . . Keefer
began to physically abuse Mr. Carbajal and harass him.

R. Vol. III at 93.

The district court found that “there are no allegations that [prosecutor] Mullin or

[investigator] Watts personally used any force against [Mr. Carbajal] or inflicted any

injury on him.” Id. Vol. IV at 179. It concluded that the complaint “fail[s] to state a

constitutional claim against Defendants Mullin and Watts and that they are therefore

entitled to qualified immunity.” Id. at 180.

Mr. Carbajal argues that prosecutor Mullin and investigator Watts violated his

constitutional rights because they conspired with Deputy Keefer to do so. “Allegations of

conspiracy may, indeed, form the basis of a § 1983 claim. However, a plaintiff must

allege specific facts showing an agreement and concerted action amongst the

defendants.” Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998)

(citation omitted). The complaint does not allege that prosecutor Mullin or investigator

Watts took any actions in furtherance of the supposed conspiracy. We therefore reject

20
Mr. Carbajal’s argument because the complaint fails to allege concerted action amongst

the Defendants.

Mr. Carbajal further argues that prosecutor Mullin and investigator Watts “‘set in

motion a series of events’ that they knew or reasonably should have known would cause

the deprivation of [his] civil rights.” Aplt. Opening Br. at 21 (quoting Bruner v. Baker,

506 F.3d 1021, 1026 (10th Cir. 2007)). But he does not challenge the district court’s

finding that “there are no allegations that prosecutor Mullin or investigator Watts had any

authority over Deputy Keefer to order him to use force against Mr. Carbajal,” R. Vol. IV

at 180, and the complaint does not otherwise allege that Mullin or Watts caused Keefer

to use excessive force against Mr. Carbajal. See Porro v. Barnes, 624 F.3d 1322, 1327

(10th Cir. 2010) (“[I]n order for liability to arise under § 1983, a defendant’s direct

personal responsibility for the claimed deprivation of a constitutional right must be

established.” (internal quotation marks omitted)). We affirm the district court’s dismissal

of the excessive force claims asserted against prosecutor Mullin and investigator Watts.

E. Leave to Amend

Plaintiffs claim the district court erred by denying their request for leave to amend

the complaint. According to Plaintiffs, “this case was originally filed” as case number

11-CV-2826. Aplt. Opening Br. at 20. In that case:

A magistrate judge reviewed Plaintiffs’ first amended complaint and found
it confusing, prolix, and repetitive, and Plaintiffs were accordingly ordered
to file an amended complaint that complied with the pleading requirements
of Rule 8. However, Plaintiffs’ second amended complaint failed to
resolve these concerns to the district court’s satisfaction. The court
concluded that the second amended complaint still failed to give
Defendants fair notice of the specific claims asserted against them because

21
 it was prolix, confusing, and conclusory, and failed to provide specific
allegations regarding how each named Defendant allegedly violated
Plaintiffs’ rights. The court therefore dismissed the action without
prejudice.

Carbajal v. City & Cty. of Denver, 502 F. App’x at 716. And we affirmed the district

court’s dismissal of the case. Id. at 717.

Here, Plaintiffs are on their fourth iteration of their complaint—meaning that

between the two cases, they have filed six versions to date. Focusing only on the four

versions filed in this case, the district court observed that Plaintiffs’ “continuing failure to

meet the relatively minimal pleading standards of Rules 12(b) and 8(a) suggests the

futility of further amendment and counsels dismissal of their claims with prejudice.”

R. Vol. IV at 242.

“[D]istrict courts may withhold leave to amend only for reasons such as . . .

repeated failure to cure deficiencies by amendments previously allowed . . . or futility of

the amendment.” Cohen v. Longshore, 621 F.3d 1311, 1313 (10th Cir. 2010) (internal

quotation marks omitted); see also Knight v. Mooring Capital Fund, LLC, 749 F.3d 1180,

1190 (10th Cir. 2014) (“[A] dismissal with prejudice is appropriate where a complaint

fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile.”

(internal quotation marks omitted)). We review a district court’s decision to deny leave

to amend a complaint for an abuse of discretion. See, e.g., Cohen, 621 F.3d at 1313.

We agree with the district court’s assessment that allowing any further

amendments to the complaint would be futile. We therefore affirm the district court’s

denial of leave to amend.

22
F. Monell Claims

The complaint asserts claims against Defendants Keefer, Simpson, Lopez, Hagan,

and McCann in their official capacities. 10 These § 1983 official-capacity claims

“represent only another way of pleading an action against [the] entity of which [these

individuals are] an agent.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978).

Plaintiffs argue that the district court “erred in finding that the complaint failed to state a

plausible Monell claim against Denver and 2nd [sic] Judicial District.” Aplt. Opening Br.

at 22.

“A municipality is not liable solely because its employees caused injury. Rather,

a plaintiff asserting a § 1983 claim must show 1) the existence of a municipal policy or

custom and 2) a direct causal link between the policy or custom and the injury

alleged.” Mocek v. City of Albuquerque, 813 F.3d 912, 933 (10th Cir. 2015) (citation and

internal quotation marks omitted). A plaintiff can demonstrate that a challenged practice

constitutes an official policy or custom for § 1983 municipal-liability purposes by

pointing to:

(1) a formal regulation or policy statement; (2) an informal custom
amounting to a widespread practice that, although not authorized by written
law or express municipal policy, is so permanent and well settled as to
constitute a custom or usage with the force of law; (3) the decisions of
employees with final policymaking authority; (4) the ratification by such
final policymakers of the decisions—and the basis for them—of
subordinates to whom authority was delegated subject to these
policymakers’ review and approval; or (5) the failure to adequately train or

10
The complaint also asserts official-capacity claims against Defendants
Flesche, Mansfield, Martinez, and Weiser, but Plaintiffs do not appeal the district court’s
dismissal of their claims against these Defendants.
23
 supervise employees, so long as that failure results from deliberate
indifference to the injuries that may be caused.

Waller v. City & Cty. of Denver, 932 F.3d 1277, 1283 (10th Cir. 2019) (internal quotation

marks omitted). “Through ‘its deliberate conduct,’ the municipality must have been the

‘moving force’ behind the injury.” Mocek, 813 F.3d at 933 (quoting Bd. of Cty. Comm’rs

v. Brown, 520 U.S. 397, 404 (1997)).

Defendants Keefer, Simpson, Lopez, and Hagan are agents of the City and County

of Denver. The complaint makes a variety of conclusory allegations such as those that

Denver had a “policy, custom, and/or practice of suppressing and/or destroying material

evidence to gain an unfair advantage” and a “policy, custom and/or practice of covering

up official misconduct to avoid civil liability, which[] has fostered a culture of

misconduct and an environment where such illegal and unconstitutional behavior is

approved and condoned.” R. Vol. III at 102. The complaint resembles the one we found

lacking in Mocek in that it “cites no particular facts in support of these ‘threadbare

recitals of the elements of a cause of action.’” 813 F.3d at 934 (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)). Indeed, “[a]side from conclusory statements, no allegations

in the complaint give rise to an inference that the municipality itself established a

deliberate policy or custom that caused [Plaintiffs’] injuries. Consequently, the

complaint ‘stops short of the line between possibility and plausibility of entitlement to

relief.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).

24
 Defendant McCann is the District Attorney for the Second Judicial District. Our

binding precedent holds that district attorneys’ offices in Colorado enjoy Eleventh

Amendment immunity. See Rozek v. Topolnicki, 865 F.2d 1154, 1158 (10th Cir. 1989).

Plaintiffs ask us to overturn this precedent by looking to Davidson v. Sandstrom,

83 P.3d 648, 656 (Colo. 2004), where the Colorado Supreme Court held that the state’s

judicial districts (not the district attorneys assigned to them) are political subdivisions of

the state. 11 But in Davidson the court did not question its prior decisions uniformly

describing a Colorado district attorney as a “state public officer,” Tisdel v. Bd. of Cty.

Comm’rs, 621 P.2d 1357, 1361 (Colo. 1980), who “belongs to the executive branch,”

People ex rel. VanMeveren v. Dist. Ct., 527 P.2d 50, 52 (Colo. 1974). Accord, e.g., Free

Speech Def. Comm. v. Thomas, 80 P.3d 935, 937 (Colo. App. 2003); Anderson v. Cty. of

Adams, 592 P.2d 3, 4 (Colo. App. 1978). Neither did the court question Colorado

statutes expressly providing that district attorneys appear on “behalf of the state” and may

appear in court outside their particular districts “on behalf of” and “represent[ing] the

people of the state of Colorado” as a whole. Colo. Rev. Stat. § 20-1-102(1), (3). In fact,

the court favorably quoted a passage from an earlier Colorado Supreme Court case

holding squarely that “[t]he district attorney is an executive officer of the state.”

Davidson, 83 P.3d at 655 (quoting Beacom v. Bd. of Cty. Comm’rs, 657 P.2d 440, 445

(Colo. 1983)). We cited this same language as support for our conclusion in Rozek. See

11
Political subdivisions of the state do not enjoy Eleventh Amendment
immunity. See Steadfast Ins. v. Agric. Ins., 507 F.3d 1250, 1253 (10th Cir. 2007).

25
865 F.2d at 1158. Because Davidson did not undermine extensive pre-existing Colorado

law that supports our holding in Rozek, Plaintiffs’ argument fails. The claims against

District Attorney McCann in her official capacity are therefore barred by the Eleventh

Amendment.

G. Exhaustion

Following an evidentiary hearing, the district court found that Mr. Carbajal failed

to exhaust his administrative remedies with respect to his excessive force claim against

Deputy Keefer. We review the district court’s conclusions of law regarding exhaustion

de novo, see Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002), but must accept

the district court’s factual findings unless they are clearly erroneous, Anderson v. City of

Bessemer City, 470 U.S. 564, 573 (1985).

1. Mr. Carbajal’s Motion for a Free Transcript

Mr. Carbajal did not provide us with a transcript of the district court’s evidentiary

hearing. He instead filed a motion under 28 U.S.C. § 753(f) seeking a free copy of the

transcript. Deputy Keefer opposed this motion but provided us with a copy of the portion

of the transcript containing the district court’s ruling.

Section 753(f) provides that “[f]ees for transcripts furnished in . . . proceedings to

persons permitted to appeal in forma pauperis shall . . . be paid by the United States if the

trial judge or a circuit judge certifies that the appeal is not frivolous (but presents a

substantial question).” We recognize that it is difficult for courts and litigants to decide

whether a substantial question is presented unless the complete record is available. See

Lee v. Habib, 424 F.2d 891, 904–05 (D.C. Cir. 1970); Jaffe v. United States, 246 F.2d

26
760, 762 (2d Cir. 1957). Nonetheless, we consider the portion of the transcript we have,

the district court filings in the record, and Mr. Carbajal’s appellate briefs when

determining whether he presented a substantial question. See Rhodes v. Corps of Eng’rs

of U.S. Army, 589 F.2d 358, 359–60 (8th Cir. 1978) (per curiam). Having reviewed these

materials, we conclude that Mr. Carbajal’s appeal from the evidentiary hearing does not

present a substantial question and we therefore deny his motion for a free transcript.

2. Application of the PLRA

Mr. Carbajal argues that the district court erred by requiring that he exhaust his

administrative remedies in accordance with the PLRA because the PLRA does not apply

to his excessive force claims. “[T]he PLRA’s exhaustion requirement applies to all

inmate suits about prison life, whether they involve general circumstances or particular

episodes, and whether they allege excessive force or some other wrong.” Porter v.

Nussle, 534 U.S. 516, 532 (2002). The exhaustion requirement extends to pretrial

detainees because the definition of a prisoner includes “any person . . . detained in any

facility who is accused of . . . violations of criminal law.” 42 U.S.C. § 1997e(h).

Although the alleged use of excessive force occurred in a holding cell,

Mr. Carbajal asserts that the PLRA does not apply because Deputy Keefer’s motivation

for using excessive force did not relate to his status as a prisoner. We reject this

argument as contrary to the above-cited authority, which holds that the PLRA applies to

all claims of excessive force pressed by prisoners.

27
 3. Judicial Factfinding

Mr. Carbajal next claims that the district court erred by acting as a factfinder with

respect to whether he exhausted his administrative remedies. Every circuit that has

considered the issue agrees that “judges may resolve factual disputes relevant to

the exhaustion issue without the participation of a jury.” Small v. Camden Cty., 728 F.3d

265, 271 (3d Cir. 2013); see also, e.g., Lee v. Willey, 789 F.3d 673, 677–78 (6th Cir.

2015) (collecting cases). We agree with our sister circuits.

4. Hearing Fairness

Mr. Carbajal avers that the district court denied him a fair hearing by excluding

two witnesses and unreasonably curtailing his time to present a case-in-chief. “The

decision to allow or prohibit testimony of witnesses . . . rests with the sound discretion of

the trial judge and will not be disturbed absent an abuse of discretion.” Moss v.

Feldmeyer, 979 F.2d 1454, 1458–59 (10th Cir. 1992). And a “trial court’s discretionary

decisions relating to the orderly presentation of evidence will not be disturbed absent a

manifest injustice to the parties.” United States v. Rodebaugh, 798 F.3d 1281, 1294

(10th Cir. 2015) (internal quotation marks omitted).

Mr. Carbajal does not articulate a reasoned argument that the district court erred

by excluding testimony from the witnesses he sought to examine—stating only that the

court “unfairly granted” motions to quash subpoenas issued to them. Aplt. Opening Br.

at 29. This “perfunctory” allegation of error is insufficient “to invoke appellate review.”

Kelley v. City of Albuquerque, 542 F.3d 802, 819 (10th Cir. 2008) (internal quotation

marks omitted).

28
 Regarding the court’s allocation of time at the hearing, the record shows that

the court admitted documentary evidence presented by both sides and that each side

devoted about an hour-and-a-half to questioning witnesses. See R. Vol. V at 459–61.

Mr. Carbajal does not explain how the court’s conclusions would be undermined by any

additional evidence he would have presented if he were given more time. We are not

persuaded that the district court’s courtroom management resulted in manifest injustice to

Mr. Carbajal.

5. Findings of Fact

Mr. Carbajal argues that the district court erred by failing to find that the Denver

Sheriff’s Department’s actions and inactions effectively prevented him from exhausting

his administrative remedies or that he did exhaust his administrative remedies. But

Mr. Carbajal simply re-hashes the arguments he presented to the district court and does

not explain why the district court’s findings that he could have exhausted his

administrative remedies but simply failed to do so are clearly erroneous. We have

reviewed the evidence presented and the district court’s reasoned assessment of the

evidence and conclude that the district court did not err in making its findings of fact.

III. Conclusion

We reverse the district court’s application of the doctrine of prosecutorial

immunity to dismiss the claims brought by Ms. Carbajal and Mr. Leal against prosecutor

Melnick for malicious prosecution related to the contempt of court charges prosecutors

filed against them, and we remand this case for further proceedings with respect to these

29
claims. We affirm the district court’s dismissal of all other claims against all other

parties.

We deny Mr. Carbajal’s motion for a free transcript of the proceedings held on

February 23, 2018. We grant Mr. Carbajal’s motion to proceed without prepayment of

costs and fees. We grant both Ms. Carbajal’s and Mr. Leal’s motions to proceed in

forma pauperis. Finally, we deny as moot the motions to dismiss this appeal filed by

Defendants (1) Flesche, Mansfield, Martinez, and Weiser; (2) Berardini; and (3) Dwyer,

Kavanaugh, Wells Fargo Bank N.A., and Williams.

Entered for the Court

Nancy L. Moritz
Circuit Judge

30