United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
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.
I respectfully recommend that the Motion to Dismiss be
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).
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.
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.
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.”
ultimately arrested Plaintiff without a warrant for violating
Ordinances § 9-4-1, see Id. ¶¶ 17-18,
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 ...