IN
THE UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF COLORADO
Civil Action
No.
Jason Pecci,
Plaintiff,
v.
Stephan
Schapanski,
Head Judge,
Larimer County, / Eighth District;
and
Sheryl
Sampson,
Clerk of
Courts, Larimer County, / Eighth District
Co-defendants.
COMPLAINT
AND JURY DEMAND FOR CONTITUTIONAL DEPRIVATIONS
PURSUANT
TO 42 U.S.C. §1983
1. This is a
civil action for declaratory and injunctive relief from obstruction of access
to the courts and denial of equal protection under the law, by the head judge
and clerk of courts in Larimer County Colorado.
2. The plaintiff
is a resident of Colorado and was denied Constitutional rights of access and
equal protection in attempts to access the Larimer County Grand Jury.
3. This is not
a prisoner civil rights suit.
4. Jurisdiction
is conferred upon this court by 28 U.S.C. §§1343(3), 2201, 2202.
“42
U.S.C. §1983”
5. “Every person who, under color of any statute,
ordinance, regulation, custom or usage, of any State… subjects, or causes to be
subjected, any citizen of the United States …
to the deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress, except that in any
action brought against a judicial officer for an act or omission taken in such
officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory
decree was violated or declaratory relief was unavailable…”
6. Plaintiff
argues the defendants did, coordinately, “under color of state law,” “cause in
fact,” “deprivations of rights or privileges secured by the Constitution and
laws,” and are therefore “liable to the party injured” for those violation.
(See ¶5 above.)
7. It has been
established that §1983 “should be read against the background of tort liability
that makes a man responsible for the natural consequences of his actions”
(Monroe v. Pape 365 U.S. 167, 187 (1961)).
Thus §1983 functions as a template for suit against state tortfeasors
that act to deprive any citizen of any rights, privileges, or immunities
secured by the Constitution and laws.
ACCUSED VIOLATIVE BEHAVIOR
8. On July 01,
2013 the clerk at the Larimer County Courthouse received and signed for
(Certified Mail No. 7012 3050 0000 1083 5517) Statutory Testimony To The Larimer County
Grand Jury Pursuant To C.R.S. §16-5-204(4)(lima)[1]. (Attached here as exhibit A) The clerk took no action. A third party (plaintiff’s mother) called the
clerk’s office to inquire if a case number had been assigned and was told,
“There is no grand jury.”
9. That is a
manifestly false statement. There is
always a grand jury. (A grand jury is
sworn for a term of one year – extendable for up to six months – with no gap
between the discharge of one grand jury and its successor. [Colorado Revised
Statute Title 16, Article 5, Part 2.])
10. On August 21, 2013 the clerk at the Larimer
County Courthouse received and signed for an Inquiry Letter to Head Judge
Schapanski – with another copy of the statutory grand jury testimony attached.
Certified Mail No. 7012 3050 0000 1083 7238. The inquiry asked Judge Schapanski if he
believed that there was no response required, contrary to the statutory
premises cited.
11. He remains mute, thus his position that the
testimony and letter of inquiry have no validity is deductive.
12. Plaintiff filed a Mandamus to the Colorado
Supreme Court (Case No. 2013SA326), which appealed to that Court’s
superintending authority to order the testimony to be submitted to a grand jury
outside Judge Schapanski’s jurisdiction.
13. A courtesy copy of a judicial complaint,
containing the Mandamus argument was sent to Judge Schapanski. He is thus aware of the Mandamus and judicial
complaint.
PURPOSE
OF 42 U.S.C. §1983
14. “The purpose of §1983 is to deter state actors
from using the badge of their authority to deprive individuals of their
federally guaranteed rights.” McDade v.
West, 223 F.3d 1135, 1139 (9th Cir. 2000). “The public interest in deterrence of
unlawful conduct and in compensation of victims remains protected by a test
that focuses on the objective reasonableness of an official’s acts. Where an official could be expected to know
that certain conduct would violate statutory or constitutional rights, he
should be made to hesitate;” Harlow v. Fitzgerald, 457 U.S. 800, 818-19. This addresses any defense pre-litigation
position (e.g. Motion for summary judgment) that they may not have had any
affirmative duty or obligation to observe the plaintiff’s Constitutional
rights, in the context of voluntary grand jury testimony. Contrary to such position, the defendants are
sworn to not take actions that fail the “objective reasonableness” test of
Harlow to such an extent that they are cognizant of potential costs to the
public treasury.
“Indeed, a decision maker would be derelict in his duties if,
at some point, he did not weigh the risk that a violation might result in an
award of damages from the public treasury…whatever other concerns should shape
a particular official’s actions certainly one of them should be the
Constitutional right of individuals who will be affected by his actions. To criticize §1983 liability because it leads
a decision maker to avoid the infringement of Constitutional rights is to
criticize one of the statute’s raisons d’etre.” (Owen v. City of Independence,
445 U.S. 622, 656 (1980)). (Internal cite omitted.)
15. The defendants here displayed no evidence of
facing the conundrum of Owen, but rather chose conduct whose natural and
probable effect (See ¶ ___ below) was to violate constitutional rights. This absolutely fails the standard of
objective reasonableness.
16. This suit for relief pursuant to 42 U.S.C.
§1983 confronts foundationally unreasonable conduct, per Harlow and Owen, that
warrants the deterrence envisioned by §1983 via declaratory and injunctive
relief.
UNDER
COLOR OF STATE LAW
17. “The
traditional definition of acting under color of state law requires that the
defendant[s] in a §1983 action have exercised their power “possessed by virtue
of state law and made possible only because the wrongdoer is clothed in the
authority of state law.” McDade, 223 F.3d at 1139-40 (internal cite
omitted). “The acts, therefore, must be
performed while the officer is acting, purporting, or pretending to act in
performance of his or her official duties. Id. at 1140. (See also Monell, 436
U.S. at 658, stating that color of state law applies “whether they [defendants]
act in accordance with their authority or misuse it.”)
18. The defendants could not have executed their
offending acts outside of their positions; thus, they acted under the color of
state law.
TO
“CAUSE IN FACT” CONSTITUTIONAL DEPRIVATIONS
19. Liability for a §1983 defendant is established
if they “cause in fact” constitutional deprivations. This is a strict liability standard which
only questions causality. An “initial
inquiry must focus on, 1) if complained conduct was committed under color of
state law and 2) whether that conduct deprived a person of rights, privileges,
or immunities secured by the Constitution or laws of the United States.” Parratt v. Taylor, 451 U.S. 527, 535 (1981). (Related issues of motivation and intention that
impute immunity are confronted below at ¶¶_____.)
20. “It is well established that all persons enjoy
a constitutional right of access to the courts, although the source of this
right has been variously located in the First Amendment right to petition for
redress, the Privileges and Immunities Clause of Article IV, §2, and the Due
Process Clauses of the Fifth and Fourteenth Amendments.” (Monsky v. Moraghen,
127 F3.d 243, 246 (2nd Cir. 1997). “In order to establish a
violation of right of access to courts a plaintiff must demonstrate that a
defendant caused ‘actual injury,’ I.e. took or was responsible for actions that
‘hindered [a plaintiff’s] efforts to pursue a legal claim.’ As the Supreme Court has explained, the
requirement of actual injury ‘derives from the doctrine of standing.’” Id. at
247. (Internal quotes from Lewis v. Casey 518 U.S. 343 (1996). The “effort to pursue a legal claim” (ibid.)
was testimony to a grand jury pursuant to Colorado State Statute – C.R.S. §16-5-204(4)(lima). (Exhibit A).
The full text of the statute is annotated in the filing to the district
court in Larimer County Colorado. (Exhibit A, pg. ____). It states, in relevant part: “Any person may
approach … the grand jury and request to testify or re-testify in an inquiry
before the grand jury or to appear before the grand jury. …the grand jury shall keep a record of all
denials of such requests to testify or appear.”
The filing made clear the judge’s obligations as the conduit to the
grand jury, pursuant to State Civil Rules (C.R.C.P. Rule 6).
The plain language treatment of the grand jury in Colorado
Criminal Practice and Procedure (Vol. 14 §2.50 et. seq.) clearly states the rights
of the testificant to give; and grand jury to accept: voluntary ad testificandum. The grand jury is an independent inquisitorial
or accusing body. Id. at §2.51 and
People v. Mason, 989 P.2d 757 (Colo. 1999). It serves a dual sword/shield function. The sword function empowers the grand jury to
“investigate and indict persons regarding offenses the district attorney does
not intend to prosecute.” Id. A grand
jury can function independently to investigate any criminal activity it
chooses. Id. at §2.60, citing C.R.S. §16-5-204(1). “The grand jury is given broad power to carry
out its functions as an investigative body.
…This enables the grand jury … to obtain evidence and testimony when
reviewing matters that have not been presented to it by the prosecutor. ”Id.,
(underlining added). Any person may
notify the grand jury of a wish to testify before them. Id., citing §16-5-204(4)(lima).
The supervisory role of the court over the grand jury is to
enable all of the above described investigatory authority: and in no way
subvert that authority. (14 Colo. Prac. Proc. §2.61)
21. The
responsibilities of the clerk and judge were contrary to the obstructive
actions they took. (Obstruction
elucidated below at ¶¶_________). No
person(s) but the clerk of courts and the head judge could have blocked this
access to the grand jury, they are thus wholly responsible for denial of
statutorily clear access to the grand jury.
This is, in turn, a denial of the Constitutional right of access to
courts presented in paragraph 20 above.
OBSTRUCTION
AS “CAUSE IN FACT”
22. The defendants have denied plaintiff access
to the courts consistent with obstruction.
Obstruction prohibits conduct that interferes with due
administration of justice. The elements
of obstruction are that the accused must have: a) corruptly, b) endeavored, c)
to influence, obstruct, or impede the due administration of justice. Corruptly means acting with improper
purpose. Endeavor is any attempt or
effort.
23. To testify to a grand jury (State statute
discussed above at ¶8 and f.n. 1) is certainly within the set of acts and
processes of administration of justice”.
Thus, defendants have: a) acted with improper purpose and b) made effort
c) to impede and obstruct testimony to a grand jury. “Action taken by a defendant does not need to
directly and immediately obstruct justice to be prohibited by statute [I.e.
meet the elements of criminal obstruction].The defendant’s conduct must be such
that its natural and probable effect would be the interference with the
due administration of justice.” (U.S. v. Thomas, 916 F.2d 647, 651 (11th
Cir. 1990)). The defendants have
coordinately conducted themselves such that the effects of their acts could only
obstruct testimony to the grand jury.
That is, cause in fact Constitutional deprivations associated with
denial of access to the courts (See ¶¶_____ below), and denial of equal
protection under the law (see ¶¶____ below), via the authority of their
positions as head judge and clerk of courts.
24. The mechanism the defendants have employed to
obstruct the exercise of Constitutional rights is feigned ignorance. Obstruction “reaches all corrupt conduct
capable of producing an effect that prevents justice from being duly
administered. Regardless of the means
employed.” (U.S. v. Silverman, 745 U.S. F.2d 1386, 1393, (11th Cri.
1984)). This forecloses any claim that
feigned ignorance is an allowed means to obstruct justice.
EQUAL
PROTECTION UNDER THE LAW
25. Equal protection represents an equal or higher
liability to the defendants for “the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws” (42 U.S.C. §1983) than denial
of access to the courts – a tripartite Constitutional right (See ¶¶22-23
above). This is because the obstruction
by the defendants arises from the discriminatory indulgence of their authority
to ignore, suppress, and obstruct the plaintiff in his position as an inmate.
26. The threshold of proof is the obstruction
itself. Analysis of the court’s record of allowance / obstruction of voluntary
ad testificandum, under C.R.S. §16-5-204(4)(lima), can only distinguish denial
of equal protection as isolated to the plaintiff or distributed to a larger
class of citizens. The first would
indicate that only the Plaintiff has been denied equal protection under the
law. The second would indicate a more
systemic denial of equal protection, to the entire class of citizens who pursue
the right of voluntary ad testificandum[2]. It is thus deductive that the defendants have
acted to exclude an inferior class – be it inmate or free citizens that want to
speak on criminal occurrences – from equal protection of the laws. (U.S.C.
Const. Amends. 5, 14).
IMMUNITY
FROM LIABILITY
27. Immunity here turns on analysis of the
offending acts as falling below the criteria of a “judicial act”. (See generally, Harlow v. Fitzgerald, 457
U.S. 800 (1982), cited at ¶____ above, for discussion of the functional
approach analysis of that may be considered judicial and non-judicial acts.)
28. Obstruction of plaintiff’s efforts to access
the courts (exercise his right of voluntary ad testificandum) and in no way be
construed as a “judicial act”[3].
If there is no case, no litigants, nor option for appeal, and
not even the pretext of principled decision making; that is no attributes of
judicial proceeding – then there can be no judicial act. (Stump v. Sparkman, 435 U.S. 349, 368-9
(1978).
29. Further, immunity is premised upon the
availability of “alternative forum and methods for vindicating rights”. (Stump at 369-70). Although an appeal to the State Supreme
Court’s superintending authority, in the form of Mandamus, was executed (See Exhibit
B), there was no confrontation of the rights to be vindicated, nor even the
pretext of principled decision making.
30. Thus, with no attributes of a judicial
proceeding nor concomitant judicial act, and only this suit as an alternative
to vindicate rights; immunity is not valid.
RELIEF
REQUESTED
31. Immunity is defeated above (¶¶27-30) with the
secondary purpose of establishing an offense
level that justifies proportional relief.
“The remedy at law must be: certain, reasonably prompt, and as
practicable and efficient as an injunction would be with respect to both the
final relief and mode of obtaining it.”
(Stewart Dry Goods Co. v. Lewis et. al., 287 U.S. 9, 10 (1932). The relief required is: declaration of the
extant obstruction and removal of the obstruction via this Court’s authority to
issue declaratory and injunctive relief.
32. Declaratory relief, via the Declaratory
Judgment Act (28 U.S.C. §2201-1), authorized the Court to “declare the rights
and other legal relations of interested parties seeking such
declarations.” The foregoing pleading
seeks a declaration that the Colorado Eight District Court, via obstructive
acts of the clerk of courts and head judge, have obstructed statutory testimony
to their grand jury thereby depriving plaintiff of the tripartite
Constitutional right of access to the courts.
33. Given the argument of ¶¶25-6 above, denial of
equal protection under the law is manifest.
The declaratory portion of the relief should acknowledge that the
obstruction was of such discriminatory character.
34. Further relief, based on the above
declaration, is required for meaningful remedy. (28 U.S.C. §2202). This relief is an injunction to remove the
obstruction of access to the courts. The
reparative function of an injunction, “prevents harmful effects of past acts
and requires the defendant to restore the plaintiff to a preexisting
condition, to which the plaintiff is entitled.”
(Lampkin v. District of Columbia, 886 F.Supp. 56, 62, (D.D.C. 1995)). The preexisting condition, to which all citizens
are entitled, is one where the discriminatory obstruction against the plaintiff
is removed. The legal means to remove
the discriminatory obstruction is an injunction.
35. The characterization of the acts of the
defendants (¶¶____ above) is intended to preempt an immunity defense against
injunctive relief. The offense established there was of
“conduct reprobated by law” consistent with criminal obstruction – with
discriminatory motivation. (Louisiana Bar Assoc. v. Carr and Associates Inc.,
15 So.3d 158, (La, Ct. App. 1st Cir. 2009)). Thus, relief beyond declaratory, as
required for a meaningful remedy (¶35 above); discriminatory obstruction of due
administration of justice militates for corrective action.
36. Mandatory injunction compels the performance of
an affirmative act. The affirmative act
would be for the Colorado Supreme Court, in its superintending authority of all
state courts, to fulfill the Civil Rule 6 role of the head judge and transmit
the statutory testimony – Exhibit A – to a grand jury not under the
discriminatory influence of the defendants herein. “A grand jury can function independently
to investigate…”
37. Plaintiff here formally requests this Court
to issue a declaration consistent with paragraphs ________ above, pursuant to
28 U.S.C. §2201, and based upon that declaration issue a mandatory injunction
to the Colorado 8th District Court? to take the affirmative action
of paragraphs 35-7 above, pursuant to 28 U.S.C. §2202 and F.R.C.P. 65.
LEGAL FEE
REMUNERATION
[1]
“lima” is used here to indicate lower case “L”; to avoid confusion with the
number one. Any confusion claimed by the
defendants would be disingenuous because the full text of the statute is
annotated in the filing (See Exhibit A and ¶20 below.)
[2] There is no known precedent or record of
legislative intent that propounds to limit, pre-screen, or otherwise obstruct
voluntary testimony to a grand jury. The
only published precedent to cite C.R.S. §16-5-204(4)(lima) is People v. Bergen
, 883 P.2d 532, 547 (Colo. App. 1994), where witnesses who “appear of their own
initiative under C.R.S. §16-5-204(4)(1) “are distinguished from witnesses who
appear under subpoena.
[3] The clerk of courts operated absent judicial
direction (sua sponte) so forfeits any claim to immunity. E.g. Kincaid v. Vail, 969 F.2d 594, 601 (7th
Cir. 1992).
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