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Margheim v. Buck

United States District Court, D. Colorado

May 27, 2014

TERRY MARGHEIM, Plaintiff,
v.
KENNETH R. BUCK, Weld County District Attorney; EMELA BULJKO, DDA; GREELEY POLICE CHIEF; JOHN BARBER; STEPHEN PERKINS; and ELLIS, Officer, Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO RULE 60(b)

WILLIAM J. MARTÍNEZ, District Judge.

Pro se plaintiff Terry Margheim ("Plaintiff") brings this case pursuant to 42 U.S.C. § 1983 against Defendants Kenneth R. Buck, Emela Buljko, the Greeley, Colo. Police Chief, John Barber, Stephen Perkins, and Officer Ellis (collectively "Defendants"), alleging violations of the Fourth and Fourteenth Amendments to the U.S. Constitution. This matter is before the Court on Plaintiff's Motion for Relief from Judgment or Order Pursuant to Rule 60(b) ("Motion"). (ECF No. 45.) For the reasons set forth below, the Motion is granted as to Defendant Buljko, and denied as to the remaining Defendants.

I. BACKGROUND

The relevant facts, as pled in the Amended Complaint, are as follows. On April 21, 2010, Defendant Buljko signed an affidavit that included false information, upon which a warrant was issued for Plaintiff's arrest. (Am. Compl. (ECF No. 8)[1] p. 4.) Pursuant to the warrant, Plaintiff was arrested on May 7, 2010 by Defendants Barber, Perkins, and Ellis, all Greeley Police Officers. ( Id. ) During a search incident to Plaintiff's arrest, evidence was discovered, which was used to hold Plaintiff in Weld County jail on criminal charges. ( Id. at 2, 4.)

While Plaintiff was in custody, Courtney Graham moved into Plaintiff's home without his permission. ( Id. at 5.) Plaintiff's mother, who held power of attorney for him, attempted to have Ms. Graham removed from Plaintiff's home by contacting the Greeley Police Department. ( Id. ) Plaintiff also sent a letter to the Greeley Police regarding Ms. Graham. ( Id. ) The Greeley Police refused to assist Plaintiff or his mother in removing Ms. Graham from Plaintiff's house, informing Plaintiff that because he was in a common law marriage with Ms. Graham, nothing would be done. ( Id. ) Plaintiff was not, in fact, in a common law marriage with Ms. Graham. ( Id. ) Plaintiff wrote letters regarding Ms. Graham to Defendant Buck, the Weld County District Attorney, and to Defendant Greeley Police Chief, but received no reply. ( Id. ) Plaintiff then hired an attorney to assist him to evict Ms. Graham, but she was gone by the time the eviction was attempted, and the house had been "looted, vand[a]lized and repossessed". ( Id. at 2, 5.)

On December 12, 2011, the charges against Plaintiff were dismissed and he was released from custody. ( Id. at 2, 4.) Plaintiff is currently incarcerated on apparently unrelated charges. ( See ECF No. 53 at 1.)

Plaintiff's Complaint (ECF No. 1) was filed pro se on June 12, 2012, and was amended on July 16, 2012 after this Court ordered Plaintiff to do so to comply with Federal Rule of Civil Procedure 8 and Local Rule 8.1A. (Am. Compl.; ECF No. 7.) The Amended Complaint brings two claims under § 1983, asserting: (1) a Fourth Amendment claim based on a false affidavit sworn by Defendant Buljko, which resulted in a false arrest, unlawful imprisonment and prosecution, and unlawful search incident to that arrest, as well as Defendants Barber, Perkins, and Ellis' use of excessive force during the arrest; and (2) a Fourteenth Amendment claim based on Plaintiff's complaint to the Greeley Police Department, the District Attorney's Office, and "internal affairs" of Ms. Graham's unlawful presence in his home, and their discriminatory refusal to do anything. (Am. Compl. pp. 2-5.)

Defendants Barber, Perkins, Ellis, and Greeley Police Chief (collectively the "Greeley Defendants") filed a Motion to Dismiss on October 16, 2012, arguing that Plaintiff's claims are barred by the statute of limitations. (ECF No. 17.) On October 23, 2012, Defendants Kenneth R. Buck and Emela Buljko (jointly the "D.A. Defendants") filed a Motion to Dismiss, also arguing that Plaintiff's claims are time-barred, and further arguing that Plaintiff makes no claim alleging personal participation by Defendant Buck. ( See ECF No. 19.)

On July 15, 2013, U.S. Magistrate Judge Boyd N. Boland entered a Recommendation that Defendants' Motions be granted. (ECF No. 38 at 2.) Plaintiff filed an Objection to the Recommendation on July 30, 2013, arguing that his Fourth Amendment claim was not time-barred because it did not accrue until December 13, 2011, and that he had sufficiently alleged facts implicating Defendants Buck and Greeley Police Chief. (ECF No. 39.) The Court adopted the Recommendation in its entirety on August 12, 2013, and granted the Motions to Dismiss ("Dismissal Order"). (ECF No. 41.) In the Dismissal Order, the Court found that Plaintiff's Fourth Amendment claims for false arrest, false imprisonment, unlawful search, and excessive force accrued on May 7, 2010, and were therefore time-barred. ( Id. at 10.) The Court also found that Plaintiff's Fourteenth Amendment claim failed to allege personal participation by Defendants Buck and the Greeley Police Chief. ( Id. at 11.) Accordingly, the Court overruled Plaintiff's Objections and dismissed Plaintiff's claims. ( Id. at 12.)

On August 21, 2013, Plaintiff filed a Motion for Reconsideration of the Dismissal Order. (ECF No. 43.) Finding that Plaintiff's Motion for Reconsideration merely reargued issues that were already raised in Plaintiff's Objection, the Court declined to reconsider the Dismissal Order. (ECF No. 44.)

On December 13, 2013, Plaintiff filed the instant Motion for relief under Federal Rule of Civil Procedure 60(b), or for an order extending his time to file an appeal under Federal Rule of Appellate Procedure 4(a)(6). (ECF No. 45.) In Plaintiff's Memorandum Brief in support of the Motion, Plaintiff included a request for leave to amend his complaint (ECF No. 46), and attached a proposed Second Amended Complaint (ECF No. 47). On December 20, 2013, the U.S. Court of Appeals for the Tenth Circuit decided Myers v. Koopman, 738 F.3d 1190 (10th Cir. 2013). The Court ordered Defendants to consider the effect of Myers in responding to Plaintiff's Motion. (ECF No. 49.) The Greeley Defendants' Response (ECF No. 51) and the D.A. Defendants' Response (ECF No. 52) were filed on January 6, 2014. No Reply was permitted.[2]

II. ANALYSIS

Plaintiff's Motion and supporting brief contains three separate requests: (a) a Motion for Relief from Judgment under Federal Rule of Civil Procedure 60(b); (b) a Motion to Reopen Time to File an Appeal under Federal Rule of Appellate Procedure 4(a)(6); and (c) a Motion for Leave to Amend the ...


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