United States District Court, D. Colorado
OPINION AND ORDER
Raymond P. Moore Judge
On January 29, 2015, plaintiff Arthur Santistevan (“plaintiff”) filed a pro se complaint against defendants Timothy Stegink (“Stegink”), an investigator for the Jefferson County Sheriff’s Office (“the JCSO”), Susan Scohy (“Scohy”), an investigative specialist for the JCSO, and “John/Jane Doe who are not known at this time” (“the Doe defendants”), alleging various violations of his constitutional rights related to an arrest and subsequent prosecution in Colorado state court. (ECF No. 1.)
After plaintiff’s motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915 (“§ 1915”) was granted, on February 27, 2015, U.S. Senior Judge Lewis Babcock reviewed the sufficiency of the complaint sua sponte pursuant to § 1915(e)(2)(B)(ii). (ECF Nos. 3, 4, 7.) The court first dismissed all of the claims against the Doe defendants because plaintiff failed to allege that they were personally involved in the alleged constitutional deprivations. (ECF No. 7 at 4-5.) The court then dismissed all of the claims against Stegink and Scohy, except for a claim of malicious prosecution pursuant to the Fourth Amendment. (Id. at 5-10.)
On April 27, 2015, Stegink and Scohy filed a motion to dismiss plaintiff’s malicious prosecution claim. (ECF No. 11.) Plaintiff then filed a response, to which Stegink and Scohy replied. (ECF Nos. 16, 18.) The Court referred the motion to dismiss to U.S. Magistrate Judge Kathleen Tafoya, who entered a report and recommendation (“R&R”), with respect to the same on February 26, 2016. (ECF Nos. 12, 21.) Although the Magistrate Judge found that the motion to dismiss “failed to analyze the sufficiency of [p]laintiff’s malicious prosecution claim, ” the Magistrate Judge reviewed the sufficiency of the claim under § 1915(e)(2)(B)(ii) instead. (ECF No. 21 at 5.) After doing so, the Magistrate Judge found that plaintiff had failed to state a malicious prosecution claim against either Stegink or Scohy, and recommended granting the motion to dismiss. (Id. at 5-8.) Plaintiff filed objections to the R&R, and Stegink and Scohy filed a response to plaintiff’s objections. (ECF Nos. 24, 29.)
Therefore, the motion to dismiss and the R&R with respect thereto are now before the Court. For the reasons discussed below, the Court REJECTS plaintiff’s objections to the R&R, REJECTS IN PART and ADOPTS IN PART the R&R, and DENIES AS MOOT the motion to dismiss.
I. Review of a Magistrate Judge’s Report and Recommendation
A district court may refer pending motions to a magistrate judge for entry of a report and recommendation. 28 U.S.C. §636(b)(1)(B); Fed.R.Civ.P. 72(b). The court is free to accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate judge. 28 U.S.C. §636(b)(1); Fed.R.Civ.P. 72(b)(3). A party is entitled to a de novo review of those portions of the report and recommendation to which specific objection is made. See Fed.R.Civ.P. 72(b)(2), (3). “[O]bjections to the magistrate judge’s report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 E. 30 St., 73 F.3d 1057, 1060 (10th Cir. 1996). Furthermore, arguments not raised before the magistrate judge need not be considered by this Court. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge’s recommendation are deemed waived.”).
II. Factual Background
In his objections, although plaintiff challenges the Magistrate Judge’s analysis of the sufficiency of his factual allegations, he does not challenge any of the Magistrate Judge’s factual findings as set forth in the “Factual and Procedural Background” of the R&R. (See generally ECF No. 24; see also ECF No. 21 at 1-2.) As such, the Court ADOPTS that part of the R&R.
A. The Motion to Dismiss
To begin with the Court agrees with the Magistrate Judge’s finding that the motion to dismiss failed to analyze the sufficiency of the malicious prosecution claim. (ECF No. 21 at 5.) Notably, nowhere in the motion to dismiss does it even explain what the common law elements are to establish such a claim. (See generally ECF No. 11.) Although these common law elements are only a “starting point” in the analysis, Pierce v. Gilchrist, 359 F.3d 1279, 1286-90 (10th Cir. 2004), unmoored from them, the motion to dismiss strays into shallow water in not addressing issues highly relevant to the analysis. (See ECF No. 11 at 5-10.) Put more simply, the motion to dismiss is largely worthless for its stated purpose: to explain why plaintiff’s malicious prosecution claim should be dismissed. Unlike the Magistrate Judge, though, the Court will not reward Stegink and Scohy by granting their motion to dismiss. Rather, given that the Magistrate Judge analyzed the malicious prosecution claim under § 1915(e)(2)(B)(ii), the Court believes that the appropriate course is to DENY the motion to dismiss as MOOT, and review the Magistrate Judge’s § 1915(e)(2)(B)(ii) recommendation. See Houston v. Sperling, 2013 WL 819846, at *1 (E.D. Okla. 2013) (denying motions to dismiss as moot after finding that the plaintiff’s claims should be dismissed pursuant to § 1915(e)(2)(B)(ii)).
B. Sufficiency of Plaintiff’s Claim
In reviewing a complaint under § 1915(e)(2)(B)(ii), a court must construe the complaint liberally and “accept the allegations of the complaint as true and view them in the light most favorable to the plaintiff.” Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir. 2001). The same standard for dismissals under Fed.R.Civ.P. 12(b)(6) is employed for dismissals under § 1915(e)(2)(B)(ii). Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Therefore, factual allegations in the complaint must “‘raise a right to relief above the speculative level.’” Id. at 1218 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007)). “Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.” Curley, 246 F.3d at 1281 (quotation omitted).
Here, the sole remaining claim is the one for malicious prosecution under the Fourth Amendment. To survive dismissal of such a claim, a plaintiff must allege sufficient facts from which the following may be plausibly inferred: (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 v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008); see also Twombly, 550 U.S. at 555-556. Ultimately, the Fourth Amendment is violated “if police knowingly or with reckless disregard included false statements in affidavits that formed the basis for the issuance of warrants.” Pierce, 359 F.3d at 1289.
1. Defendant Scohy
Plaintiff’s sole allegation against Scohy is that, prior to plaintiff’s arrest, she created a photographic array that was relied upon in Stegink’s arrest warrant and viewed by the only witness to the alleged crime, but was subsequently found to be impermissibly suggestive and excluded from the criminal trial. (ECF No. 1 at 3-4, 6-7.) Plaintiff alleges that Scohy placed photographs of six individuals in the array, five of which were “[w]hite [m]ales” and the other was “a Native American, ” in order to “single out” plaintiff because he is a Native American. (Id. at 7.) The Magistrate Judge found that Scohy’s photographic array did not cause plaintiff’s alleged constitutional injury because a judge held a preliminary hearing on September 23, 2009, at which evidence was independently evaluated, citing Taylor v. Meachem, 82 F.3d 1556 (10th Cir. 1996), and a certified exhibit attached to the motion to dismiss which contains the “registry of actions” from plaintiff’s state criminal proceeding. (ECF No. 21 at 6; ECF No. 11-1; ECF No. 11 at 2.)
The Court disagrees in two main respects. First, although the “registry of actions” does state that a preliminary hearing was held on September 23, 2009, the exhibit provides no indication that the hearing official “independently listened to testimony and evaluated evidence, ” as the Magistrate Judge suggested. (See ECF No. 11-1 at 2; ECF No. 21 at 6.) Rather, the exhibit is silent as to precisely what occurred at the preliminary hearing, other than that the hearing was held and an arraignment was set for a future date. (See ECF No. 11-1 at 2.) And, as discussed below, the nature of the evidence presented may be crucial.
Second, and more important, the Magistrate Judge misapplied Taylor. In Taylor, the Tenth Circuit Court of Appeals affirmed the district court’s grant of summary judgment as to a malicious prosecution claim premised upon an arrest warrant containing allegedly false statements and omissions because the false statements and omissions would not have altered the determination that probable cause existed. 82 F.3d at 1562-63. The Tenth Circuit then observed that the plaintiff “remained incarcerated for seven weeks after his arrest, during which time a preliminary hearing was conducted, in which numerous witnesses testified … and following which another judge determined that [probable cause existed].” Id. at 1563. The Tenth Circuit explained that, having concluded that the plaintiff’s Fourth Amendment rights were not violated in connection with his arrest, it could proceed to determine whether his rights were violated during the seven-week incarceration prior to the preliminary hearing. Id. The Tenth Circuit concluded that such an inquiry was unnecessary, however, because the complaint did not allege that the defendant engaged in impropriety following the preparation of the arrest warrant affidavit, or that the defendant caused false or perjured testimony to be presented at the preliminary hearing. Id. at ...