MONTE VISTA—Monte Vista resident Telesforo Joseph Dominguez filed a complaint in U.S. District Court on Feb. 2, 2018 seeking $75,000 in damages from the City of Monte Vista, Neuerburg and current and former employees of the Monte Vista Police Department, all of whom were employed by MVPD on the dates in question: Robert Pino, Eduardo Rodriguez, Michael Martinez, Thomas Masias, Evan Lopez and then Police Chief James Grayson.

Events leading to the suit

The alleged events outlined/quoted below are according to the plaintiff’s complaint. The sequence of events was not questioned in the defendants’ motion to dismiss the suit.

Dominguez’s residence is across an alley from the residence of Bobby and Isabella Pino, parents to Robert, David and Steven Pino. The latter two sons are mentioned as witnesses but are not defendants in the case. On Dec. 7, 2015 the Pinos were issued a notice by then Code Enforcement Officer Masias informing them their alley property “required attention.” On Dec. 11, 2015, Officer Robert Pino was off-duty and working in his parents’ backyard. Dominguez observed him “throwing trash, dog feces, yard waste and other debris from his parents’ backyard in the alley.” Dominguez asked Robert Pino to clean up this mess. The next morning (Dec. 12, 2015) Dominguez saw the mess remained in the alley and went to the Pinos’ home to discuss the issue. Bobby Pino allegedly became “enraged without provocation” and began yelling obscenities at Dominguez, telling him to get off of his property and making threats if that was not complied with, telling him to “complain to the police department if he had a problem with the condition of the alley or his sons’ work.” Dominguez observed police cars driving up and down the alley that day.

On Dec 14, 2015, Dominguez contacted Masias to show him the alley mess had still not been cleaned up. When showing Masias the mess, Dominguez stated Robert and Steven Pino were standing in the backyard observing the conversation. Masias stated he would speak to the Pinos about the mess and entered his vehicle and drove down the alley, speaking with another neighbor approximately 30 feet away. Dominguez alleges Steven Pino opened the gate to his parents’ yard while Robert Pino stepped into the alley and confronted Dominguez, taunting and yelling at him and waving a metal wand, telling Dominguez “Go ahead and call the [expletive] cops! They aren’t going to do a thing about it! We are the [expletive] cops” and threatened to “[expletive] him up” and “kick his old man [expletive].” Dominguez got the attention of Masias, who returned to the scene and told Dominguez to return to his yard, which he complied with but was followed by Robert Pino, who allegedly continued to threaten him. Dominguez reacted by taking a defensive stance and telling Robert Pino he would have to throw the first punch. Dominguez’s wife came outside at that time, and the complaint alleges Pino shouted for her “to get the [expletive] inside,” while Steven Pino pulled him away from Dominguez. Dominguez reacted by allegedly telling Robert Pino “You’re nothing but a blimp and a Baby Huey.” Masias told Dominguez to go inside his home.

Later on Dec. 14, Corporal Rodriguez and Officer Martinez were dispatched to the Pinos’ home as Robert Pino had made a report of harassment against Dominguez. The complaint alleges both Robert and Steven Pino made false statements in their recitations of the incident to the investigating officers, including stating Dominguez had told Robert Pino he had “kicked bigger guys [expletive] for less,” that Robert Pino had stayed calm and omitted threats Pino had made to Dominguez. The complaint also alleges Masias confirmed Robert Pino had followed Dominguez into his yard but made a false statement that he had witnesses Dominguez tell Robert Pino “I may be an old man, but I can whip your fat [expletive].” The complaint also states the investigating officers did not seek out the neighbor down the alley Masias was speaking with. Officer David Pino, on duty that day, also responded to the scene when his brother called the police but did not report his involvement. Neuerburg later called Dominguez on Dec. 14 and asked him to write a statement about the events, which Dominguez stated he would also bring to council and Neuerburg discouraged him from doing that.   

Rodriguez and Martinez did not interview Dominguez until the next day, Dec. 15. Masias also arrived during the interview and stated the only thing he had heard Dominguez say to Robert Pino was he was ashamed of the job done in the alley. Rodriguez and Martinez informed Dominguez they had decided not to file harassment charges against Dominguez or anyone involved and stated they would “wait for Chief James Grayson to return from out of town to decide how to proceed.”

On Dec. 17, 2015, Dominguez spoke to Monte Vista City Council about the incident during the public comments portion of their regular meeting. On Dec. 21, 2015 Grayson ordered Rodriguez to reopen the matter. Rodriguez got a written statement from Isabella Pino and interviewed Dominguez, Robert Pino, Masias, Garcia and then City Councilor Joe Schlabach but still did not interview the additional witness Masias was speaking to in the alley. The complaint alleges Rodriguez made statements in his interview with Schlabach that alluded to Rodriguez having difficulty being neutral while investigating an incident involving his coworker.

Dominguez was served with a summons and complaint for on Jan. 19, 2016 as a result of Rodriguez’s investigation. The charge was dismissed on Feb. 25, 2016. Dominguez alleges there has since been retaliation against him including being followed without provocation or justification by MVPD vehicles and an increased MVPD presence near his home. The incident and alleged retaliation has caused duress and health problems for Dominguez.

Plaintiff’s claims for relief

Dominguez’s suit alleges six claims for relief as a result of being systematically deprived of his constitutional rights by MVPD law enforcement officers and the City of Monte Vista.

The first claim— deprivation of first amendment right to freedom of speech, against all defendants— alleges MVPD reversed their decision to charge him with harassment in retaliation to his speaking publicly to the city council and was an attempt to chill his use of first amendment rights in the future. The second claim is for deprivation of the 14^th amendment right to equal protection of the law, alleging the defendants singled out Dominguez and targeted him with an improper use of process by charging him with harassment with no probable cause or legitimate government interest, conduct “motivated by loyalty to a ‘brother in blue’ and desire to exact retribution for Mr. Dominguez’s dispute with the Pino family and his speech about the incident at a Monte Vista city council meeting.”

The third claim for relief is deprivation of the fifth and 14^th amendment right to procedural due process alleges the defendants abused their authority to investigate and file criminal charges against an innocent person and attack Dominguez’s reputation, “This conduct shocks the conscience.” The fourth claim is malicious prosecution against Pino, Rodriguez, Lopez, Grayson, Neuerburg and the city. This claim alleges the state of Colorado, through MVPD and the city and the defendants, brought a criminal case against Dominguez maliciously that was supported by false statements and “turning a blind eye to facts supporting Dominguez’s version of events in order to support and protect Officer Robert Pino, a ‘brother in blue’” and failing to interview other witnesses. This claim alleges the city instituted policies “which authorized its officers and staff to fabricate information about Mr. Dominguez in order to bring a harassment charge unsupported by probable cause” and the charge was the result of the defendants working together motivated by retribution.

The fifth claim for intentional infliction of emotional distress against Pino, Rodriguez, Lopez, Grayson and Neuerburg alleges they acted “recklessly or with the intent of causing Mr. Dominguez severe emotional distress” and “engaged in extreme or outrageous conduct” by charging Dominguez with harassment. The final claim is an abuse of process against the same defendants stating the criminal charges filed against Dominguez were done so willfully, without probable cause and with an ulterior motive. For each of the charges, Dominguez is seeking amounts determined at trial, plus pre-judgment interest and attorney fees.

Defendants’ motion to dismiss

In compliance with their legal requirement to respond, the defendants filed a motion to dismiss the case on March 28. In a response heavily citing state and federal court precedents, the motion states the complaint “fails to plead plausible claims against each defendant and instead alleges without factual support that all defendants were involved in the alleged unconstitutional prosecution.” The motion states the complaint does not show the city’s policies, customs or practices caused the plaintiff’s deprivation of constitutional rights.

The “individual defendants assert the defense of qualified immunity. Where an individual defendant raises this defense, the burden shifts to the plaintiff to establish (1) that the defendant violated a constitutional right and (2) that the right was clearly established at the time of that violation.” To overcome this defense, the motion also states the plaintiff must prove the officers acted in violation of established law.

The defendants’ motion states in the first through fourth claims for relief, the plaintiff does not prove any municipal policies or customs exist that deprive him of his constitutional rights and the fourth claim simply states there is a policy but does not provide any other evidence or precedent to support that or meet the standard of “facial plausibility” set in Ashcroft v. Iqbal , doesn’t show how the city policies are a “moving force” behind the constitutional violation and doesn’t show a causal link from the city policy to the injury caused.

The motion argues the “plaintiff has not alleged adequate personal participation by Pino, Martinez, Masias, Lopez and Neuerburg” in a violation of his constitutional rights. For defendant Robert Pino, the motion states he could not have participated in an effort to retaliate against Dominguez for his city council statement because his allegedly false statements were made before Dominguez’s council statements and the complaint does not allege any actions or conduct on his part after that in depriving Dominguez of his rights or charging him with harassment. For Martinez, the motion states the plaintiff only lists the interviews Martinez conducted and his initial decision not to charge Dominguez and does not show how Martinez’s actions violated Dominguez’s rights. In the case of Masias, the motion points out the plaintiff’s complaint does not adequately show Masias played a role in charging him with harassment and gave some information favorable to the plaintiff’s version of events to the officer who charged Dominguez. The motion states there are no allegations at all presented against Evan Lopez and the complaint does not show how Lopez was involved in the incident or how he participated in charging Dominguez. The complaint also stated Neuerburg contacted the plaintiff, requested a statement and discouraged him from delivering a statement to city council but does not show how Neuerburg violated any of the plaintiff’s rights.

The motion calls for the retaliation claims to be dismissed because the plaintiff must establish he was engaged in a constitutionally-protected activity and the defendants’ actions  “caused him to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity” and the defendants’ actions were motivated by the plaintiff exercising his rights. The charges filed against the plaintiff cannot be motivated by probable cause in order to be the result of retaliation. Grayson’s only adverse action in the complaint was to order Rodriguez to reopen the investigation; he was not alleged to have demanded Rodriguez charge Dominguez and the complaint does not adequately establish Grayson was motivated by Dominguez’s statements to city council. The complaint does also not establish where Rodriguez acted out of a desire to retaliate and argues he did have probable cause to charge Dominguez; there were multiple witness statements and Dominguez admitted some things that were in the witnesses’ statements, enough to establish probable cause. The complaint does not show how Rodriguez would have established Robert Pino’s statements were false.

The motion argues the violation of equal protection rights should be dismissed because the complaint does not prove personal participation on the part of most of the defendants and doesn’t meet the standard set by Warrington v. Board of County Commissioners of Mineral County/ Kansas Penn Gaming LLC v. Collins which requires the plaintiff “must allege that he was treated differently than an individual who was similarly situated in all material respects” and provide examples.

The procedural due process claim should be dismissed, according to the defendants’ motion, because Dominguez’s complaint does not demonstrate any governmental failure to provide him of any notice or an opportunity to be heard and does not demonstrate how the individual defendants’ conduct acted in violation of the law.

The plaintiff’s tort claims, malicious prosecution, intentional infliction of emotional distress and abuse of process should be dismissed because the complaint does not establish how the defendants engaged in “willful and wanton” conduct knowingly creating danger or risking the safety of others. The motion to dismiss concludes with a request of judgment in favor of the defendants against the plaintiff for attorney fees, costs “other and further relief as the court deems just and proper.”

 Caption

File Photo

Monte Vista resident and previous county assessor Joe Dominguez addressed the Monte Vista City Council on Dec. 17, 2015.