Montgomery v. Saenz

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff William Montgomery's Second Amended Complaint (“SAC”) asserts one claim under 42 U.S.C. § 1983 for malicious prosecution against the two Defendants. Both Defendants now move to dismiss the suit in its entirety for failure to state a claim for relief. I find that Plaintiff does not allege facts that support a malicious prosecution claim under the Fourth Amendment.

         Therefore, I respectfully recommend that the Motion to Dismiss be granted.

         BACKGROUND

         The following are factual allegations made by Plaintiff in the SAC, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         On the evening of February 17, 2016, Plaintiff began standing on a private sidewalk in the Westfield Shopping Center in Westminster, Colorado, holding a cardboard sign that indicated he was homeless and in need of help. SAC ¶¶ 5-6, ECF No. 8. Within four minutes, Westminster Police Officers Andrew Saenz and Jude Perez observed Plaintiff and pulled over their vehicle in order to speak with him. Id. ¶ 7. Officer Saenz told Plaintiff, “[Y]ou can't loiter here, and you can't . . . hold your sign up there on the corner, here in the city of Westminster.” Id. ¶ 8.

         Defendants then asked Plaintiff for his identification, but Plaintiff did not quickly comply. See Id. ¶¶ 9-10. Instead, Plaintiff “attempted to reason” with Defendants. Id. ¶ 9. Plaintiff asked Defendants what ordinance they believed he was violating and explained that he researched the relevant property line to ensure he was on private property. See Id. ¶¶ 9-11. Otherwise, Plaintiff “continued to not concede to Defendants' show of authority . . . .” Id. ¶ 10. Officer Perez eventually told Plaintiff that he was “panhandling on a public street” and said he had probable cause to request Plaintiff's identification. See Id. Plaintiff realized that Defendants “actually thought” the location at issue was a public road. Id.

         The private drive that Plaintiff occupied resembled the adjacent public street in many respects. See Id. ¶ 11. It was paved with similar looking asphalt and concrete and was also shaped similarly to the public street. See Id. Plaintiff concedes, “the only way to way to . . . tell[] the difference between a public road and a private drive is with the use of maps and/or signs.” Id.

         Defendants ultimately arrested Plaintiff without a warrant for violating Westminster, Colo.

         Code of Ordinances § 9-4-1, see Id. ¶¶ 17-18, which states:

         (B) It shall be unlawful for any person to solicit employment, business, contributions, or sales . . . from the occupant of any vehicle traveling upon any street or highway when such solicitation or collection either:

(1) Causes the person performing the activity to enter onto the traveled portion of a street or highway.

(2) Involves the person performing the activity to be located upon any median area that separates traffic lanes for vehicular travel in opposite directions.

§ 9-4-1(B)(1)-(2). Plaintiff was unable to post bond and spent the next thirty-three days in ...