Andrew Thomas Scott v. Michael Allen, et al.

Denver, Colorado personal injury lawyers represented the Plaintiff who sued on a 1983 civil rights violation theories.

Plaintiff is a process server and owns a process serving business in Colorado. Am. Compl. [#35] ¶¶ 13-15. On March 12, 2021, Joseph C. Maher ("Mr. Maher”), an attorney for the Colorado Department of Revenue ("DOR”), asked Plaintiff to serve a subpoena on Defendant Hiller, a Colorado State Patrol ("CSP”) trooper. Id. ¶ 22. From March 12, 2021, through March 16, 2021, Plaintiff made several attempts to coordinate with Defendant Hiller about a time and place for service. Id. ¶ 23-28. On the morning of March 17, 2021, Plaintiff traveled to Defendant Hiller's residence. Id. ¶ 31. Defendant Hiller's wife answered the door. Id. ¶ 32. Defendant Hiller refused to come to the door to accept service. Response [#74] at 4. Plaintiff taped the subpoena to Defendant Hiller's door. Am. Compl. [#35] ¶ 38. Plaintiff wore a body camera that generated a video of his visit. Id. ¶ 41.



After taping the subpoena to the door, Plaintiff sent a text message to Defendant Hiller, stating "I did everything I could to avoid putting your home address on the affidavit which will be filed in this case and the criminals will see. Now I'll fill out a document explaining your wife's information and explaining that you refuse service ....” Pl.'s Ex. 2 [#74-2] at 4. Plaintiff then prepared an affidavit of service explaining Plaintiff's efforts to serve Defendant Hiller. Am. Compl. [#35] ¶ 44; see Pl.'s Ex. 2 [#74-2] at 7. In the affidavit of service, Plaintiff included Defendant Hiller's full name, date of birth, personal address, personal phone number, personal vehicle description and license plate number, and Defendant Hiller's wife's full name and date of birth. Am. Compl. [#74] ¶ 44.



For reasons discussed later in this section, the Motions [#58, #71] are resolved under Rule 12(b)(1), not Rule 12(b)(6). Accordingly, the Court considers the evidence submitted by the parties. See Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).



Within fifteen minutes after Plaintiff left Defendant Hiller's residence, Defendant Hiller emailed Plaintiff to coordinate a meeting place to complete service. Pl.'s Ex. 2 [#74-2] at 5. Plaintiff responded to that email, stating that he would "file the attached affidavit in this case” and that "it's out of [his] hands now.” Id. at 6. Plaintiff attached the notarized affidavit of service in the email. Id. Plaintiff also emailed the affidavit of service to Mr. Maher's office. Pl.'s Aff. [#74-13] at 2. Mr. Maher agreed to redact Defendant Hiller's personal information from the affidavit of service before sending the served subpoena to the DOR. See Pl.'s Ex. 3 [#74-3] at 2.



Neither Plaintiff nor Defendants provide any correspondence between Defendant Hiller and Mr. Maher showing that Hiller specifically requested that his personal information be removed. However, after Mr. Maher indicated that Defendant Hiller's personal information must be redacted, Hiller responded to Mr. Maher stating, "I appreciate you agreeing to remove my family's personal information, and my personal information from [the Affidavit of Service].” Pl.'s Ex. 2 [#74-3] at 2.



On or before March 23, 2021, Defendant Hiller filed an administrative complaint against Plaintiff with the Colorado Department of Regulatory Agencies, Office of Private Investigator Licensure. See Pl.'s Ex. 4 [#74-4] at 3. On April 7, 2021, Defendant Hiller also submitted a complaint to the Process Servers Association of Colorado ("PSACO”). See Pl.'s Ex. 9 [#74-9] at 4. Plaintiff alleges that Defendant Hiller's complaints implicitly assert a violation of a Colorado criminal statute, Colo. Rev. Stat. § 18-9-313(2.7) (the "Statute”), which states:



It is unlawful for a person to knowingly make available on the internet personal information about a protected person or the protected person's



immediate family if the dissemination of personal information poses an imminent and serious threat to the protected person's safety or the safety of the protected person's immediate family and the person making the information available on the internet knows or reasonably should know of the imminent and serious threat.



Id. A violation of the Statute is a class 1 misdemeanor. See Colo. Rev. Stat. § 18-9313(3). Defendant Hiller's complaints did not reference or cite to the Statute; hence, the basis for Plaintiff's assertion that Defendant Hiller alluded to the Statute in his complaints is unclear.



The term "protected person” includes peace officers. Colo. Rev. Stat. § 18-9-313(1)(n). Defendant Hiller is a peace officer and a protected person under the Statute because he is employed as a CSP trooper. Am. Compl. [#35] ¶ 11. Defendant Hiller's wife is a protected person under the Statute because she is the spouse of a protected person under the Statute. Id. ¶ 12.



Plaintiff filed responses to Defendant Hiller's complaints with the respective offices. See Pl.'s Ex. 7 [#74-7]; Pl.'s Ex. 10 [#74-10]. The Office of Private Investigator Licensure ultimately dismissed Defendant Hiller's complaint; however, PSACO expelled Plaintiff for violating the PSACO Code of Ethics and the Statute. Pl.'s Ex. 11 [#74-11] at 2.



Plaintiff commenced this action on July 26, 2021. See Compl. [#1]. On January 13, 2022, Plaintiff filed the First Amended Complaint [#35] seeking declaratory relief regarding the constitutionality of the statute, as discussed further below. According to Plaintiff, Defendant Hiller "asserted salacious and false accusations against [Plaintiff] in an overt effort to undercut [Plaintiff's] professional integrity, reputation, and credentials.” Response [#74] at 1. Plaintiff "intends to exercise his right to free speech by publishing his video and affidavit of service on the internet [that include personal identifying information of Defendant Hiller and his wife] to defend against [Defendant] Hiller's accusations by showing the truth to the public and to hold this vindictive officer to account.” Pl.'s Aff. [#74-13] at 2. Plaintiff has not yet publicly published the affidavit of service nor any of Defendant Hiller or his wife's personal information on the internet due to the threat of prosecution under the Statute. Id.



The CSP Defendants allege, however, that Plaintiff "has already admitted that he has taken several public measures to refute Trooper Hiller's claims, yet he has faced no credible threat of prosecution.” CSP Defs.' Reply [#87] at 2. It is unclear what conduct the CSP Defendants are referring to.



Plaintiff "seeks a declaration that the Statute is unconstitutional on its face[ ]” (Amended Complaint [#35] ¶ 94), and "asks this Court to determine whether the Statute can constitutionally proscribe him from publicly defending himself because his evidence contains [Defendant] Hiller's identifying information” (Response [#74] at 2). Plaintiff also "seeks a declaration that the Statute is unconstitutional as applied to publication of the Video, the Affidavit of Service, and [Defendant] Hiller's personal identifying information contained therein.” Am. Compl. [#35] ¶ 103. As to the alleged unconstitutionality of the Statute, Plaintiff claims that it has a chilling effect on the exercise of his First Amendment rights to free speech and free press due to his fear of future arrest and prosecution if he publishes Defendant Hiller's personal information. Id. at 17-20.



In the CSP Defendants' Motion [#58], the CSP Defendants contend that Plaintiff's claims against them should be dismissed under Fed.R.Civ.P. 12(b)(1) because (1) they are not proper Ex parte Young official capacity defendants and cannot provide the protective relief Plaintiff seeks; (2) any future publication of Defendant Hiller's personal information would not involve Defendant Hiller in his official capacity and therefore he still would not be a proper Ex parte Young defendant; and (3) even if the CSP Defendants are proper Ex parte Young defendants, Plaintiff cannot establish injury in fact and does not have Article III standing. Defendant Allen's Motion [#71] contends that Plaintiff's claims should be dismissed under Rule 12(b)(1) because Plaintiff does not have standing and cannot establish injury in fact.



While Defendant Allen filed his Motion [#71] pursuant to both Rules 12(b)(1) and 12(b)(6), he only asserts an argument as to Plaintiff's standing, which the Court finds should be addressed under Rule 12(b)(1). See Creek Red Nation, LLC v. Jeffco Midget Football Ass'n, Inc., 175 F.Supp.3d 1290, 1293 (D. Colo. 2016). Thus, the Court analyzes both Motions [#58, #71] under that rule.

8/09/2024 127 MEMORANDUM OPINION AND ORDER dismissing without prejudice 35 Plaintiff's Amended Complaint, and denying as moot 119 Plaintiff's Motion for Summary Judgment and 121 Defendant's Motion for Summary Judgment. Entered by Judge Nina Y. Wang on 8/9/2024. (cpear) (Entered: 08/09/2024)

08/09/2024 128 FINAL JUDGMENT pursuant to 127 Memorandum Opinion and Order. Entered by the Clerk of the Court on 8/9/2024. (cpear) (Entered: 08/09/2024)