United States District Court, D. Colorado
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Gordon P. Gallagher United States Magistrate Judge
Plaintiff, Andre Jones, is an inmate in the custody of the Colorado Department of Corrections currently incarcerated at the Sterling Correctional Facility. Plaintiff has filed, pro se, a Prisoner Complaint asserting a deprivation of his constitutional rights under 42 U.S.C. § 1983. Plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
The Court must construe the Complaint liberally because Plaintiff is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, Plaintiff will be ordered to file an amended complaint if he wishes to pursue his claims in this action.
In the Nature of the Case section of the Complaint, Plaintiff alleges the following:
On September 9, 2013 in El Paso County, State of Colorado, Detective Jerry Schiffelbein knowingly and maliciously arrested [Plaintiff] for an allege crime of violence. Detective Schiffelbein fabricated his narrative report to use the “Good Faith Rule” for probable cause in order to be issued arrest, search, seizure warrants. On December 10, 2013, Judge Barney Iuppa swore Detective Schiffelbein in to be a material witness in court where he knowingly and wantonly committed perjury to bound over for trial. Due to his position as a Peace Officer, Detective Schiffelbein has the ability to influence and deceive the CSPD, District Attorney, Magistrate and the Judge in order to get a conviction. Detective Schiffelbein’s action has cause [Plaintiff] to lose his kids, house, job, and his liberties. [Plaintiff] is currently waiting on his appeal, this suit is being brought to hold Detective Jerry Schiffelbein accountable for his actions.”
(ECF No. 1, at 3). Plaintiff asserts one claim entitled “18 USCS § 1001(a)(3) False swearing.” (Id., at 4). Within this claim, Plaintiff also cites to Colo. Rev. Stat. § 18-8-111(1)© for false reporting, 18 U.S.C. § 1623(a) for false testimony, Color. Rev. Stat. § 18-8-502(1) for perjury, and 42 U.S.C. § 1983 for false statements in connection with establishing probable cause for an arrest. (Id., at 4-6). Plaintiff further contends that Defendant violated the “5th and 14th amendment that guarantees the right as to life, liberty, and property so fundamentally important as to require compliance with the due process standards of fairness and justice.” (Id., at 6). As relief, Plaintiff requests declaratory and injunctive relief. (Id., at 8).
II. Sufficiency of Claims
A. Fourth Amendment claims
The Court construes Plaintiff’s allegations liberally as asserting a § 1983 claim for malicious prosecution (arrested pursuant to legal process - i.e, a warrant).
As explained by the Tenth Circuit in Myers v. Koopman, 738 F.3d 1190 (10th Cir. 2013):
Unreasonable seizures imposed without legal process precipitate Fourth Amendment false imprisonment claims. See Wallace [v. Kato], 549 U.S. [384, ] 389, 127 S.Ct. 1091 [(2007)] (concluding that false imprisonment was the proper analogy where defendants did not have a warrant for the plaintiff's arrest and thus detention occurred without legal process). Unreasonable seizures imposed with legal process precipitate Fourth Amendment malicious-prosecution claims. See Heck [v. Humphrey], 512 U.S. [477, ] 484, 114 S.Ct. 2364 [(1994)] (where detention occurs with legal process the “common-law cause of action for malicious prosecution provides the closest analogy”).
Id. at 1194. See also Wilkins v. DeReyes, 528 F.3d 790, 793-94, 799 (10th Cir. 2008) (concluding that where police officer obtained an arrest warrant for plaintiff based on fabricated evidence gathered by using coercive interrogation techniques and plaintiff challenged his detention after the institution of legal process, the claim that the legal process itself was wrongful stated a “Fourth Amendment violation sufficient to support a § 1983 malicious prosecution cause of action.”); Mondragon v. Thomas, 519 F.3d 1078, 1083 (10th Cir. 2008) (“After the institution of legal process, any remaining constitutional claim is analogous to a malicious prosecution claim.”).
To state an arguable claim of malicious prosecution claim brought under the Fourth Amendment, Plaintiff must allege facts to show that “(1) the defendant caused the plaintiff's continued confinement or prosecution; (2) the original action terminated in favor of the plaintiff; (3) no probable cause supported the original arrest, continued confinement, or prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained damages.” Wilkins, 528 F.3d at 799. Malice may be inferred if a defendant causes the prosecution without arguable probable cause. See Id. at 800-01 (malice may be inferred from intentional ...