United States District Court, D. Colorado
MARK A. ESQUIBEL, Plaintiff,
OFFICER WILLIAM CÁRDENAS, Individual and Official Capacity, and OFFICER DAN SMITH, Individual and in his Official Capacity, Defendants.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, United States District Court Senior Judge
Plaintiff Mark A. Esquibel is in the custody of the Colorado Department of Corrections and currently is incarcerated at the Crowley Correctional Facility in Olney Springs, Colorado. Plaintiff, acting pro se, initiated this action by filing a Prisoner Complaint pursuant to 42 U.S.C.
§ 1983 that challenges his alleged false arrest and imprisonment. Plaintiff also claims that he was subjected to an illegal search, to racial profiling, to an interrogation in violation of Miranda, and to a violation of his due process right to freedom of travel. Plaintiff seeks money damages and declaratory and injunctive relief.
Magistrate Judge Gordon P. Gallagher reviewed the Complaint and found that Plaintiff's false arrest and false imprisonment claims accrued on April 9, 2010, when the judge determined probable cause did not exist to arrest or detain Plaintiff and his unlawful search claim accrued at the time it occurred on November 20, 2009. ECF No. 9 at 2. Magistrate Judge Gallagher further determined that to the extent any part of Plaintiff's claims may be construed as malicious prosecution claims, or a Fifth Amendment claim based on a violation of Miranda v. Arizona, 384 U.S. 436 (1966), the claims for damages are barred by the rule in Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff, therefore, was directed to respond and show cause why this action should not be dismissed, because more than two years have passed since the action accrued regarding the alleged false arrest, search and seizure, and imprisonment claims and any claim for damages challenging the validity of Plaintiff's state court conviction, as it may pertain to a malicious prosecution, and Miranda, is barred by the rule in Heck.
On December 28, 2015, Plaintiff filed a Response to the Order to Show Cause and an Amended Prisoner Complaint. Except for the removal of paragraph no. 8 and the change of the wording in paragraph no. 21, which was paragraph no. 22 in the original Complaint, the Amended Complaint appears to be exactly the same as the original Complaint filed on October 15, 2015. Paragraph no. 8 stated that,
"Plaintiff has been and continue [sic] to be damaged by Defendants' false arrest/unlawful seizure of him." ECF No. 1 at 7. The new paragraph no. 21, on Page Nine, in the Amended Complaint states,
"Plaintiff has been damaged by the Defendants illegal search of him violating his fourth [sic] Amendment right against such." ECF No. 11 at 9. It appears that the changes Plaintiff made in the Amended Complaint are in support of his arguments in the Response, one of which is he is not challenging his conviction.
In the Response, besides stating that he is not challenging his underlying conviction, he also states that he is not challenging the length of his incarceration, and he is not seeking release. ECF No. 12 at 1. Plaintiff also contends in the Response that in August 2015 he reviewed the
"motion hearing transcripts" and "came to understand" that he could seek damages solely on the warrantless illegal arrest, illegal search without probable cause, and racial discrimination by Officers Dan Smith and William Cárdenas. Id. at 2. Plaintiff further contends that because the claims he raises in this action directly relate back to the claims he raised in Esquibel v. Bechtel, et al., No. 10-cv-01279-ZLW (D. Colo. Aug. 5, 2010), he has shown cause for proceeding in this action. ECF No. 12 at 3.
Magistrate Judge Gallagher's findings in the December 1, 2015 Order to Show Cause are set forth below.
Plaintiff's claims in this action arise out of his arrest on November 20, 2009. Because Plaintiff was arrested without a warrant, see Compl., ECF No. 1, at 5-6,
"the Fourth Amendment requires a judicial determination of probable cause as
a prerequisite to extended restraint of liberty following arrest." Gerstein v. Pugh, 420 U.S. 103, 113-14 (1975).
"[T]he Fourth Amendment usually requires a judicial determination of probable
cause as a prerequisite to extended restraint of liberty following arrest, " Gerstein, 420 U.S. at 114. A conviction, however, will not be vacated solely because a defendant was detained pending trial without a determination of probable cause. Gerstein, 420 U.S. at 119; United States v. Aranda-Hernandez, 95 F.3d 977, 979-80 (10th Cir. 1996), cert. denied 520 U.S. 1144 (1997).
Plaintiff asserts that on April 9, 2010, at a "motion hearing, " a judge found he had been illegally searched in violation of his Fourth Amendment rights because there was no probable cause to search him, arrest him, and detain him. Compl., ECF No. 1, at 4-5. Plaintiff further asserts that the judge found he was illegally interrogated on November 20, 2009, without a Miranda warning in violation of his Fifth Amendment rights. Id. at 5-6.
To the extent Plaintiff intends to challenge his current incarceration based on Defendants' actions arising out of the November 20, 2009 arrest, search, and detainment, Plaintiff may not challenge the validity of his conviction based on his claim that he was detained pending trial without a determination of probable cause. Gerstein, 420 U.S. at 119. A claim that he continues to be damaged by Defendants false arrest and unlawful seizure of him, as it pertains to his current incarceration, is not properly raised in this action.
Second, an unlawful search claim accrues at the time it occurred, which was November 20, 2009. See Glaser v. City and County of Denver, 557 F.App'x 689, 699 (10th Cir. Jan. 29, 2014); see also Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 558 (10th Cir. 1999) (stating that claims arising out of a search and seizure accrue when the actions occur). To the extent Plaintiff asserts claims of false arrest and false imprisonment, those claims accrued on April 9, 2010, when the judge determined probable cause did not exist to arrest or detain Plaintiff. See Wallace v. Kato, 549 U.S. 384, 391 (2007) (statute of limitations in
§ 1983 action begins to run when an individual appears before an examining magistrate and the injury is known).
The limitation period for an action under 42 U.S.C. § 1983 is set by the personal injury statute in the state where the cause of action accrues. Garcia v. Wilson, 731 F.2d 640, 650-51 (10th Cir. 1984). In Colorado, the limitations period for a personal injury action is two years. Colo. Rev. Stat.
§ 13-80-102. Even § 1983 actions asserted against law enforcement officers are subject to the two-year limitation period pursuant to Colo. Rev. Stat.
§ 13-80-102(1)(g). See Nieto v. State, 952 P.2d 834, 844 (Colo.App. 1997) (rehr'g denied), reversed in part on other grounds, 993 P.2d 493 (Colo. 2000). Plaintiff filed this action on October 15, 2015, almost four years after the two-year statute of limitations expired on November 20, 2011.
The Court also notes that in 2010, Plaintiff filed a complaint that raised claims regarding the November 20, 2009 arrest, search and seizure, but that he failed to assert personal participation by the two named defendants, who were officers involved in the arrest, one of which, Defendant Smith, is named in this action. Esquibel v. Bechtel, et al., No. 10-cv-01279-ZLW (D. Colo. Aug. 5, 2010).
. . . .
"[W]hen a federal statute [42 U.S.C. § 1983] is deemed to borrow a State's limitations period, the State's
tolling rules are ordinarily borrowed as well . . . ." See Ehimeshoff v. Hartford Life & Accident Insurance Co., et al., C U.S. C, 134 S.Ct. 604, 616 (2013) (citing Board of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 484 (1980) (in
§ 1983 actions
"a state statute of limitations and the coordinate tolling rules" are
"binding rules of law"). The State of Colorado recognizes the doctrine of equitable tolling, which applies
"when flexibility is required to accomplish the goals of justice." Morrison v. Goff, 91 P.3d 1050, 1053 (Colo. 2004) (quotations omitted). Plaintiff does not allege that equitable tolling applies. And,
"[w]hile the statute of limitations is an affirmative defense, when the dates
given in the complaint make clear ...