IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 1:14-cv-1319


ROBERT ALVAREZ and GEORG-ANDREAS POGNY,

Plaintiffs,

vs.

COL DAVID GROSSO, in his individual and official capacity;
SGM MARK COOK, in his individual and official capacity;
COL JOHN IRGENS, in his individual and official capacity,
LTG JOSEPH ANDERSON, in his individual and official
capacity; COL DAVID HAMILTON, in his individual and
official capacity; and DOES 1 20.

Defendants.


COMPLAINT



Robert Alvarez and Georg-Andreas Pogny, Plaintiffs in the above-captioned matter, by
and through their counsel of record, for their cause of action against Defendants, state as follows:
1.
Robert Alvarez (ALVAREZ) is and was at all relevant times a resident of Colorado
Springs, El Paso County, Colorado. Georg-Andreas Pogny (POGNY) is and was at all
relevant times a resident of Denver, Denver County, Colorado.
2.
Defendants COL GROSSO, COL IRGENS, SGM COOK and LTG ANDERSON were,
at the relevant times, residents of El Paso County, Colorado. Hereinafter, references to the
2012 Defendants collectively are references to COL GROSSO, COL IRGENS, SGM COOK
and LTG ANDERSON.
3.
Defendant COL HAMILTON is a resident of El Paso County, Colorado. He will begin
his assignment as Garrison Commander of the United States Army installation of Fort Carson,
Colorado, in May 2014.
4.
DOES 1 - 20 are and were employees of the United States Army and/or agents of the
United States Army via employment. DOES 1 - 20 are believed to be residents of Colorado.
5.
All actions undertaken by any and all of the Defendants constituted actions under color
of state law.
6.
Venue and jurisdiction are proper in this Court because the acts and omissions
complained of herein occurred at Fort Carson, El Paso County, Colorado.

7.
FACTUAL BACKGROUND
ALVAREZ is a veteran of the United States Marine Corps. He holds a masters degree in
Rehabilitation Counseling and advanced certifications in vocational assessment and evaluation.
His experience in the mental health field includes service as the first counselor assigned to the
Fort Carson (Colorado) Warrior Transition Unit, and as a military outreach officer for mental
health care at Give An Hour, where he worked with the United States Armys Suicide
Prevention Task Force. ALVAREZ spearheaded the development of the Veterans Trauma
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Court in Colorado Springs, El Paso County, Colorado for active-duty and veteran service
members charged with civilian crimes.
8.
POGNY is a veteran of the United States Army. His service included deployment as a
member of Special Forces Operational Detachment Alpha 092, Charlie Company, 3
rd
Battalion,
10
th
Special Forces Group (Airborne). He holds a bachelors degree in criminology. His
experience includes investigative work for the National Gulf War Resource Center, and Veterans
For America, as well as work with the National Veterans Legal Services Program. He has also
served administratively for mental health organizations such as Give An Hour and the mental
health initiative Just One Wounded Warrior, a project of the National Gulf War Resource
Center.
9.
In approximately 2008, ALVAREZ and POGNY began working together to provide
investigative, forensic and advocacy services to service members facing administrative and
judicial proceedings, and assistance in securing service-connected benefits, to include obtaining
accurate diagnoses and disability ratings in order to ensure delivery of service members health
care after discharge from the military. This included, but was not limited to:
* Case analysis, to include client-authorized receipt of and comprehensive
review of a clients records of health care and service for completeness and
accuracy;

* Client-authorized direct communication with military and civilian health
care and mental health care providers, both to help the client understand
his medical condition and history and to help the providers understand the
clients needs;

4
* Where appropriate, seeking correction of health care records and/or
additional diagnostic workup in order to correct incomplete or inaccurate
diagnoses;

* Communication with and advocacy to a clients chain of command up to
and including the post commander,
* Investigation of allegations underlying efforts at bad conduct discharges,
including witness interviews, analysis of physical evidence, site/scene
inspections, document review, other background investigation and
communication with criminal defense counsel; and

* Trial support services during courts-martial and other administrative or
judicial proceedings, both military and civilian.

ALVAREZ and POGNYs services also include ongoing support to clients and their families to
help them transition to civilian life and to obtain the services and health care necessary to
manage their conditions.
10.
The majority of ALVAREZ and POGNYs clients suffer from acute mental illness
precipitated by traumatic brain injury (TBI) and/or post-traumatic stress disorder (PTSD),
and are unable to fully understand the nature of legal proceedings or even the nature of their own
physical/mental conditions. Nor are the majority of ALVAREZ and POGNYs clients able to
effectively investigate and advocate for themselves in light of their inexperience with and lack of
understanding of the complexities of the military benefits and military justice systems.
11.
ALVAREZ and POGNY perform these services on a pro bono basis, working together
and sometimes in association with attorneys representing service members (including attorneys of
the United States Army Trial Defense Service office as well as civilian lawyers). Since 2008, they
have provided these services to hundreds of clients at no cost to the clients. Their investigative
5
work have enabled their clients criminal defense attorneys to disprove prosecutorial allegations
in courts-martial. Their advocacy work has enabled their clients to secure access to health care
for injuries and psychiatric disorders sustained during military service. Their care for their clients,
many of whom struggle with suicidal ideation, has quite literally saved lives.
12.
In 2013, ALVAREZ and POGNY formalized their association as Uniformed Services
Justice & Advocacy Group (501(c)(3) status pending). The nature of the services ALVAREZ
and POGNY provide did not change with this incorporation. ALVAREZ and POGNY serve
both veterans and active duty service members.
13.
The nature of ALVAREZ and POGNYs work requires physical access to military
installations. Many of their clients reside on post. Courts-martial and administrative hearings
are held on post. Witnesses who have information relevant to allegations against their clients are
held on post. When their clients out-process at the conclusion of their service, the requisite
paperwork is completed on post. By and large, their clients receive medical evaluation and
treatment on post at military hospitals and clinics. Obviously, their clients commanders live and
work on post. If ALVAREZ and POGNY cannot physically access the post and buildings and
facilities thereon, their advocacy, investigation and service is impaired. Before November 5,
2012, ALVAREZ and POGNY had unfettered access to the unrestricted areas of the United
States Army installation at Fort Carson, Colorado.
14.
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The nature of ALVAREZ and POGNYs work also requires access to military personnel
and contractors, including health care personnel and their clients commanders. To investigate
the completeness of a medical diagnosis, they must have unfettered access to the providers who
developed the diagnosis. To advocate and intercede for their clients to command staff, they must
be able to at least try to contact these officers. Investigation of allegations against clients charged
with crimes and/or violations of the Uniform Code of Military Justice also requires that Plaintiffs
be able to contact and interview military personnel, including officers and commanders. Before
November 5, 2012, ALVAREZ and POGNY were unaware of any orders prohibiting military
personnel and military contractors from speaking with them.
15.
At all times, ALVAREZ and POGNY have conducted themselves professionally and
with understanding of, and appropriate respect for, the need for military order and discipline.
ALVAREZ and POGNY have had positive and cooperative working relationships with Fort
Carsons Commanding General preceding LTG ANDERSON as with Fort Carsons Garrison
Commander preceding COL GROSSO. ALVAREZ and POGNY had never interacted with
COL GROSSO directly in their work as veterans advocates.
16.
By late 2011, while reviewing cases for the Trial Defense Service office at Fort Carson,
ALVAREZ and POGNY identified a pattern wherein the Army was increasing its use of
administrative discharge procedures, such as Chapter 10, AR 635-200 Request for Discharge in
Lieu of Trial by Court-Martial, to expel service members for misconduct, when those service
members suffered from TBI, PTSD and other injuries that should have been addressed through
7
medical disposition. In early 2012, SGM COOK contacted ALVAREZ and POGNY, at the
direction of COL IRGENS and LTG ANDERSON, to invite their collaboration in identifying
soldiers whose misconduct was caused by service-related injuries and moving those soldiers into
medical disposition instead of court-martial or Chapter 10 discharge.
17.
ALVAREZ and POGNY continued investigating, reviewing, communicating with
doctors and otherwise interceding to command staff on behalf of their clients. ALVAREZ and
POGNY maintained professional communication to LTG ANDERSON as well as with
Defendants SM COOK and COL IRGENS, bringing their clients cases to Defendants attention
when they found inaccuracies or dispositional improprieties in their clients cases.
18.
On occasions wherein ALVAREZ and POGNY were unable to resolve differences with
Fort Carson command relating to their clients, ALVAREZ and POGNY reported the dispute to
the Office of the Surgeon General of the United States Army; to the Vice-Chief of the United
States Army; and to United States senators and congressional representatives. ALVAREZ and
POGNY also requested Army Regulation 15-6 investigations of Fort Carson physicians and
commanders for interference with their clients medical evaluation and treatment and with
medical disposition of their clients separation from the Army.
19.
On March 29, 2012, ALVAREZ and POGNY contacted LTG ANDERSON via e-mail
regarding a client named SPC Nesbett. SPC Nesbett faced involuntary separation from the Army
without benefits or access to health care, via Chapter 14-12b proceedings alleging Pattern of
8
Misconduct. After reviewing SPC Nesbetts case, ALVAREZ and POGNY learned that SPC
Nesbetts alleged misconduct was caused by a service-related injury, specifically drug addiction
resulting from medically-prescribed opiate treatment for war wounds. ALVAREZ and POGNY
identified inaccuracies in SPC Nesbetts medical records, specifically inaccurate claims that SPC
Nesbett was a drug addict before enlisting in the Army; and asked LTG ANDERSON to suspend
all separation activity on SPC Nesbetts case pending further review and correction of SPC
Nesbetts record.
20.
On April 2, 2012, SGM COOK responded to ALVAREZ and POGNYs
communication on LTG ANDERSONs behalf. SGM COOK maintained that SPC Nesbett was
a drug addict before enlisting in the Army and that he should be separated from the Army.
ALVAREZ and POGNY thereafter advised LTG ANDERSON that they felt obliged to ask the
Senate Veterans Affairs Committee and Senate Armed Services Committee to initiate an
investigation. Thereafter, LTG ANDERSON suspended separation proceedings for SPC
Nesbett; and, on further review, SPC Nesbetts case was determined to be appropriate for medical
disposition rather than Chapter 14 discharge.
21.
SPC Nesbetts case was one of many in which ALVAREZ and POGNY identified
fraudulent information entered into soldiers mental status evaluations, and demonstrated that
mental status evaluations were written to justify adverse administrative separation with a Less
Than Honorable characterization of service, in contradiction of soldiers medical records. As a
result of ALVAREZ and POGNYs work for soldiers facing adverse administrative separation
9
and attorneys representing soldiers facing adverse administrative separation, their clients were
able to obtain complete evaluations necessary to show that TBI and/or PTSD, or other service-
related injuries (to include prescription drug addiction), were at the root of alleged misconduct.
This in turn slowed and often reversed the course of adverse administrative separation for many
soldiers, ensuring that those soldiers would have access to health care and benefits to help them
heal from TBI, PTSD and addiction and reenter civilian life; the other consequence, however,
was additional cost to the Army and Veterans Administration, as soldiers honorably discharged
on medical retirement (as opposed to adversely discharged for misconduct) remain eligible for
health care and other veterans benefits.
22.
ALVAREZ and POGNY continued this work through the summer and into autumn of
2012. Their work included representation of a soldier named SGT Tackett, who faced adverse
discharge for misconduct. SGT Tacketts misconduct was caused by a service-related injury, e.g.,
PTSD; and SGT Tackett was mentally ill, unstable and suicidal. ALVAREZ and POGNY
confronted Defendants with reports of Army psychiatrists confirming that SGT Tackett suffered
from PTSD caused by a service-related injury. Nonetheless, LTG ANDERSON ordered that
SGT Tackett would receive a Less Than Honorable discharge.
23.
Also in that time period, ALVAREZ and POGNY represented a soldier named SPC
Bettencourt, who, like most of ALVAREZ and POGNYs clients, also faced adverse discharge
for misconduct. SPC Bettencourts medical records confirmed diagnoses of TBI and PTSD, as
well as treatment plans consistent with those diagnoses. Because SPC Bettencourts misconduct
10
was caused by a service-related injury, ALVAREZ and POGNY interceded to Defendants to
request that the Army suspend Chapter 14-12 proceedings and process SPC Bettencourt for
medical disposition. This included contacting the 2012 Defendants Tiger Team, formed by
LTG ANDERSON ostensibly to ensure that complicated cases have all matters fully considered
prior to being brought before him or his subordinate commanders for decision. This also included
assisting SPC Bettencourt in requesting additional evaluation of his TBI and PTSD with full
review of his medical chart.
24.
The suspension of SPC Bettencourts discharge was short-lived. On October 23, 2012,
Defendants authorized resumption of SPC Bettencourts out-processing. COL IRGENS advised
ALVAREZ and POGNY that
[w]e hope that you will continue to provide information to the Tiger Team
regarding perceived problems with systems used by the Installation, and specific
injustices you believe are happening to individual Soldiers ... Your input regarding
issues is valued, as this Installation and its Commanders care deeply about
Soldiers. They are highly interested in looking into any matter that might be
perceived as or actually does deprive a Soldier of any fairness. Please feel free to
notify the Tiger Team of all issues. It would be most helpful in ensuring we look
into the proper issues of you reduce your specific concerns to writing for
presentation to the Tiger Team.

25.
In an e-mail dated October 27, 2012, ALVAREZ and POGNY again asked LTG
ANDERSON to suspend SPC Bettencourts discharge, and expressed to LTG ANDERSON their
frustration with the disposition of SPC Bettencourts case as a Chapter 14-12b rather than a
medical discharge. ALVAREZ and POGNY repeated this request in a subsequent e-mail to
LTG ANDERSON dated October 31, 2012. In these e-mails, ALVAREZ and POGNY
11
expressed their concern that the posts legal staff, to include SGM COOK, as well as the Tiger
Team had improperly thwarted medical disposition of soldiers such as SPC Bettencourt and had
diverted and/or concealed medical evidence that could change the disposition of soldiers such as
SPC Bettencourt.
26.
ALVAREZ and POGNY made clear in their October 31, 2012 e-mail that their
remarks were restricted to the cases they were handling, without aspersion to other cases that the
Tiger Team might be reviewing in which ALVAREZ and POGNY were uninvolved. Without
using vulgarities, profanity or threats, ALVAREZ and POGNY expressed concern that the
conduct of some of LTG ANDERSONs subordinates was tantamount to a violation of Article
134 of the Uniform Code of Military Justice, e.g., wrongful interference with an adverse
administrative proceeding. ALVAREZ and POGNY notified LTG ANDERSON of plans to
approach the Armed Services Committee to seek its intervention for SPC Bettencourt. Finally,
ALVAREZ and POGNY asked again that LTG ANDERSON suspend SPC Bettencourts
discharge; transition SPC Bettencourt to MEB disposition; and assist in referring SPC
Bettencourt to NICoE for Psychological Health and Brain Injury for complete assessment and
evaluation of his TBI before commencement of MEB proceedings.
27.
On the same day (October 31), ALVAREZ accompanied SPC Bettencourt through his
out-processing from Fort Carson. POGNY was in Denver and was unable to participate.
ALVAREZ identified himself to SPC Bettencourts military escort and presented him with a
business card. Midway through the process, the out-processing was halted via telephone on an
12
order from SPC Bettencourts physician, ordering suspension of SPC Bettencourts discharge for
further medical evaluation.
28.
On October 30, 2012, SGM COOK sent the following e-mail to POGNY:
You and [ALVAREZ] are invited to the Tiger Team meeting on Thursday, 1
November. The meeting is at Behavioral Health, bldg 1830, at 0800. The team
will take up old business at the beginning. You are scheduled to brief at 0830.
Please wait in the waiting area and someone will come out and get you.

You are invited to present issues that you would like the Tiger Team to look into.
I ask you to come to the meeting prepared to present specific delineable issues,
brief and to the point. I also ask that you bring your issues in writing so you can
ensure we don't have any mistakes, misinterpretations and misunderstanding of
the issues and that we capture all the information you brief in its entirety. The
intent of the meeting is for the Tiger Team to understand the context and
background of each issue we need to look into.

We will present the issues to the commander along with our findings so that he
can take appropriate action.

29.
Four days later, on November 5, 2012, COL GROSSO issued an order barring
ALVAREZ and POGNY from Fort Carson, asserting that their presence on Fort Carson was
disruptive to the good order and discipline of the installation. COL GROSSO gave no
explanation of what actions ALVAREZ and POGNY allegedly took that disrupted the good
order and discipline of Fort Carson. This order prevented, and continues to prevent,
ALVAREZ and POGNY from entering Fort Carson for any reason, even as trial support for
criminal defense attorneys in courts-martial. This order also prevented, and continues to
prevent, ALVAREZ and POGNY from contacting military personnel and contractors on Fort
Carson.
13
30.
While ordered by COL GROSSO, this order was issued with the agreement and
cooperation of, if not actually on the orders of, LTG ANDERSON, with the agreement and
cooperation of SGM COOK and COL IRGENS.
31.
Before November 5, 2012, the 2012 Defendants gave ALVAREZ and POGNY no
warning or notice that their actions were in any manner allegedly disruptive or unprofessional.
32.
In barring ALVAREZ and POGNY from Fort Carson, the 2012 Defendants exercised
their authority in an arbitrary and unpredictable manner. The November 5, 2012 order barring
ALVAREZ and POGNY lacked reasonable grounds, and was injudiciously applied.
33.
After
a- the 2012 Defendants falsely accused ALVAREZ of physically interfering
with the out-processing of SPC Bettencourt, despite knowing that
ALVAREZ did nothing to obstruct, delay or interfere with SPC
Bettencourts outprocessing;
the 2012 Defendants issued the debarment order, ALVAREZ and POGNY
sought reversal of and investigation of the debarment order by other and higher authorities. In
justifying their debarment order in response to those inquiries, the 2012 Defendants falsely
accused ALVAREZ and POGNY of deceitful and dishonorable conduct in an effort to
undermine their work for soldiers facing adverse administrative separations with a Less Than
Honorable characterization of service and the ensuing loss of veterans benefits. For example:

b- the 2012 Defendants falsely accused POGNY of physically interfering
with the out-processing of SPC Bettencourt, despite knowing that
POGNY was not even physically present in El Paso County during SPC
14
Bettencourts outprocessing, and had only brief telephone contact with
ALVAREZ, SPC Bettencourt or anyone else connected to SPC
Bettencourt during the out-processing;

c- the 2012 Defendants falsely accused ALVAREZ and POGNY of telling a
soldier to drool and otherwise falsify symptoms of mental illness in order
to justify medical disposition and evade bad conduct discharge
proceedings.

The 2012 Defendants made these accusations only after issuing the debarment order, when asked
by other and higher authorities to account for the debarment order. The 2012 Defendants did
not make these allegations in support of the debarment order at the time of issuance of the order.
Nonetheless, these allegations served to dissuade other and higher authorities investigation of
the debarment order, and to falsely and unfairly malign ALVAREZ and POGNY.
35.
The 2012 Defendants stood on the debarment order even when, in April 2014, Plaintiffs
were invited to Evans Army Community Hospital on Fort Carson to meet with Hospital
Commander COL Dennis LeMaster, for the purpose of discussing issues and concerns
surrounding the delivery of medical care to soldiers at Fort Carson. Such meeting was initiated at
the request of COL LeMaster as an extension of Plaintiffs ongoing dialogue with the United
States Army Surgeon General. Within a day of receiving COL LeMasters invitation, Plaintiffs
requested permission from COL GROSSO to enter Fort Carson for this limited purpose and even
offered to submit to Army escort; COL GROSSO, through his Executive Officer, refused this
request.
FIRST CAUSE OF ACTION
42 U.S.C. 1983
15
36.
Plaintiffs incorporate Paragraphs 1-35 above as if fully set forth herein.
37.
Plaintiffs had a right under the Constitution of the United States to freedom of speech,
assembly and association by employees of governmental entities.
38.
At all times relevant to this Complaint, COL GROSSO, COL IRGENS, SGM COOK,
LTG ANDERSON and DOES were acting under color of law under the constitutions, statutes,
administrative rules, customs, policies and usages of the United States and had assumed the
responsibilities, activities, and rights involved in exercising their roles as members of the United
States Armys professional, supervisory and/or decision making staff.
39.
At all times relevant to this Complaint, ALVAREZ and POGNY were engaged in
speech and other activities protected by U.S. CONST. amend. I, including, but not limited to:
a- Engaging in and reporting the results of factual investigation and analysis;
b- Interviewing clients, witnesses, physicians, psychologists, counselors,
commanders, and other individuals who may have information bearing on
a potentially improper adverse administrative separation with a Less Than
Honorable characterization of service and/or potentially improper denial of
veterans benefits;

c- Communication of findings with clients and criminal defense counsel;
d- Assisting at pretrial proceedings and courts-martial;
e- Communication of grievances and disputes to Defendants, physicians, and
others involved with the disposition of soldiers separation proceedings;
and

16
f- Reporting investigative findings to other authorities and agencies, such as
the Office of the Surgeon General of the United States Army, the
Inspector General of the United States Army and United States senators
and congressional representatives.

ALVAREZ and POGNY engaged in these activities in a professional and completely lawful
manner that was not violent, vulgar, profane or threatening. Their activities were in no manner
disruptive to or interfered with the good order and discipline of Fort Carson.
40.
The 2012 Defendants acted with deliberate indifference to ALVAREZ and POGNYs
known and recognized constitutional and legal rights to due process, freedom of speech, freedom
of association and freedom from retaliation for protected conduct. The 2012 Defendants
recklessly and deliberately participated in the deprivation of ALVAREZ and POGNYs
constitutional rights by debarring ALVAREZ and POGNY from Fort Carson and from access to
Fort Carson health care professionals and officers in a manner that was arbitrary and
unpredictable, amounting to content-based discrimination. This includes, but is not limited to:
a- Whistleblower retaliation against ALVAREZ and POGNY for
reporting to higher authorities the efforts to subject soldiers to adverse
administrative separation with a Less Than Honorable characterization of
service for misconduct caused by service-related injuries, rather than
providing those soldiers with appropriate medical evaluation and
treatment and medical discharges from service; and

b- Content-based discrimination against ALVAREZ and POGNY for their
advocacy against the United States Armys pattern and practice of
reducing its ranks by chaptering soldiers with service-related injuries.

By arbitrarily debarring ALVAREZ and POGNY from Fort Carson and from access to Fort
Carson officers and healthcare professionals, the 2012 Defendants retaliated against ALVAREZ
17
and POGNY with the impermissible motive of curbing ALVAREZ and POGNYs protected
conduct.
41.
The ongoing retaliatory acts set forth above have deprived, are now depriving and will
imminently deprive ALVAREZ and POGNY of their right to engage in constitutionally-
protected conduct free from governmental retaliation. These retaliatory acts have caused, are
causing and will continue to cause irreversible harm to ALVAREZ and POGNY in their
protected advocacy activities. To the extent that COL HAMILTON maintains the debarment
order, he, too, is violating and will imminently continue to violate ALVAREZ and POGNYs
right to engage in constitutionally-protected conduct free from governmental retaliation.
SECOND CAUSE OF ACTION
42 U.S.C. 1983
42.
Plaintiffs incorporate paragraphs 1 - 41 as if fully set forth herein.
43.
LTG ANDERSON, COL GROSSO and COL HAMILTON have broad discretion to
exclude civilians from a military base. That power cannot, however, be exercised in a manner
that is patently arbitrary, irrational, unpredictable or discriminatory.
44.
Plaintiffs had a right under the Constitution of the United States to due process,
specifically to not be debarred from non-restricted areas of Fort Carson in an arbitrary, irrational,
unpredictable and discriminatory manner.
18
45.
By debarring ALVAREZ and POGNY from Fort Carson in an arbitrary and
unpredictable manner, the 2012 Defendants violated, are violating and will imminently continue
to violate ALVAREZ and POGNYs right to substantive due process. To the extent that COL
HAMILTON maintains the debarment order, he, too, is violating and will imminently continue
to violate ALVAREZ and POGNYs right to substantive due process.
46.
The ongoing arbitrary acts set forth above have deprived, are now depriving and will
imminently deprive ALVAREZ and POGNY of their right to substantive due process, including
the right to engage in constitutionally-protected conduct free from governmental retaliation.
These retaliatory acts have caused, are causing and will continue to cause irreversible harm to
ALVAREZ and POGNY in their protected advocacy activities.
THIRD CAUSE OF ACTION
INTERFERENCE WITH RIGHT OF ACCESS TO COURT
47.
Plaintiffs incorporate paragraphs 1 - 46 as if fully set forth herein.
48.
ALVAREZ and POGNYs advocacy work includes providing trial support service to
criminal defense lawyers representing soldiers (including clients of ALVAREZ and POGNY)
facing court-martial. Their trial support service can include file and witness management during
trial as well as providing testimony regarding their investigative findings.
49.
19
The Fort Carson courtrooms are public courtrooms, open to any member of the public as
a default.
50.
At no time did ALVAREZ or POGNY ever conduct themselves in a Fort Carson
courtroom in anything other than a professional manner. At all times that ALVAREZ and
POGNY provided trial support service, they were courteous, focused, deferential to the
presiding judge, respectful of courtroom procedures, and if anything assisted in maintaining
courtroom decorum by providing comfort and support to their mentally ill soldier clients who
were in distress during court proceedings.
51.
While the 2012 Defendants have made after-the-fact false accusations against ALVAREZ
and POGNY to justify the debarment order to inquiring authorities, the 2012 Defendants
actually have yet to levy any accusations of misconduct or inappropriate behavior by either
ALVAREZ or POGNY in any Fort Carson courtroom.
52.
Defendants debarment order banned ALVAREZ and POGNY from the Fort Carson
courtrooms.
53.
The 2012 Defendants violated, are violating and will imminently violate ALVAREZ and
POGNYs right to access criminal and other non-restricted proceedings in the courtrooms of
Fort Carson, by preventing ALVAREZ and POGNY from providing trial support services
during courts-martial and other administrative or judicial proceedings. To the extent that COL
20
HAMILTON maintains the debarment order, he, too, is violating and will imminently continue
to violate ALVAREZ and POGNYs right to access criminal and other non-restricted
proceedings in the courtrooms of Fort Carson.
54.
ATTORNEYS FEES
Plaintiffs incorporate by reference the allegations contained in 1-53 above as though fully
set forth herein.
55.
As a result of defendants actions as alleged herein, ALVAREZ and POGNY have been
required to retain the services of attorneys and are entitled to a reasonable amount for attorneys
fee pursuant to 42 U.S.C. 1988 for those violations covered by the Civil Rights Act.
56.
DAMAGES
Plaintiffs incorporate by reference the allegations contained in paragraph 1-55 above as
though fully set forth herein.
57.
It is necessary and proper that this Court adjudicate and declare that Defendants have
arbitrarily, irrationally, unpredictably and discriminatorily debarred ALVAREZ and POGNY
from Fort Carson in violation of their Constitutional rights and in retaliation for protected
conduct. It is furthermore necessary and proper that this Court adjudicate and declare that
Defendants must vacate the debarment order, and ALVAREZ and POGNYs right of access to
21
non-restricted areas of Fort Carson and to officers, soldiers and healthcare providers on Fort
Carson is restored.
WHEREFORE, ALVAREZ and POGNY pray for judgment against Defendants as
follows:
a. A declaration that Defendants have violated ALVAREZ and POGNYs First
Amendment rights and rights of substantive due process;

b. A declaration that the November 5, 2012 debarment order is arbitrary, irrational,
unpredictable and discriminatory;

c. A declaration that COL HAMILTON must vacate the debarment order, and
restore ALVAREZ and POGNYs right of access to non-restricted areas of Fort
Carson and to officers, soldiers and healthcare providers;

d. An order requiring Defendants to pay ALVAREZ and POGNYs attorneys fees
and expenses, pursuant to 42 U.S.C. 1988; and

e. Ordering such other and further relief as is mete.

ALVAREZ and POGNY request that this matter be tried to the Court in Denver,
Colorado.
DESIGNATION OF PLACE OF TRIAL
ROBERT ALVAREZ and GEORG-ANDREAS POGNY,
Plaintiffs,

By:
Maren Lynn Chaloupka Nebraska State Bar Assoc. #20864
/s/ Maren Lynn Chaloupka
Chaloupka Holyoke Snyder Chaloupka Longoria &
Kishiyama, P.C., L.L.O.
1714 2
nd
Avenue
P.O. Box 2424
Scottsbluff, NE 69363-2424
Telephone: (308) 635-5000
Facsimile: (308) 635-8000
mlc@chhsclaw.net