Pollack v. Boulder County

          REPORT & RECOMMENDATION ON MOTION TO DISMISS (DKT. #24) AND MOTION FOR LEAVE TO AMEND THE COMPLAINT (DKT. #59)

          N. Reid Neureiter, United State Magistrate Judge

         Presently before the Court are Defendants Boulder County, Polly Miller, and Steve Kellison's Motion to Dismiss (Dkt. #24), and Plaintiff Reid Pollack's Motion for Leave to Amend the Complaint (Dkt. #59), both of which have been referred by Judge Christine M. Arguello. (Dkt. #25 and Dkt. #60.) The Court has reviewed the parties' filings, taken judicial notice of the Court's entire file in this case, considered the applicable Federal Rules of Civil Procedure, statutes, and case law, and heard argument by all parties at a hearing held on February 7, 2019.

         Being fully informed, and for the reasons addressed more fully herein, the Court RECOMMENDS that the motion to dismiss (Dkt. #24) be GRANTED, and the motion for leave to amend (Dkt. #59) be GRANTED in part and DENIED in part.

         I. Background

         On July 25, 2014, Defendants Detective Polly Miller and Deputy Steve Kellison arrested Mr. Pollack without a warrant on a charge of second degree assault-domestic violence. (Dkt. #15 ¶ 5; Dkt. #1-1 at 113-15.^[1]) According to the Arrest Affidavit that Detective Miller filled out, Mr. Pollack allegedly injured his partner, Karen Rusnik, on June 30, 2014, and she contacted the police on July 5, 2014 to report the incident. (Dkt. #1-1 at 113-15.) After being arrested, Mr. Pollack spent five days in jail before being released on a bond that included a no-contact order. (Dkt. #15 ¶¶ 40, 50.) On August 2, 2014, Mr. Pollack was arrested for violating the no-contact order. (Id. ¶ 143.)

         The second-degree assault charge was dismissed on or around October 12, 2015 because, according to the Boulder County District Attorney's motion to dismiss, Ms. Rusnik could not be located to testify, and “[w]ithout [her] testimony, the People are unable to safely proceed to trial in this case.” (Dkt. #59-1 at 33.) Mr. Pollack disputes that Ms. Rusnik could not be found, and asserts the reason stated for dismissing the case against him was false. (Dkt. #35 at 2-3.) In his proposed amended complaint, Mr. Pollack says “that Karen [Ms. Rusnik] was ready and willing to testify but not for the prosecution.” (Dkt. #59-1 ¶ 76.) In or around April 2016, a jury found Mr. Pollack guilty of violating the no-contact order. (Dkt. #15 ¶¶ 85, 94.) His appeal of that conviction was denied. (Id., ¶ 143.)

         Mr. Pollack, who is proceeding pro se, ^[2] initially brought this action in relation to these two arrests. At the February 7, 2019 hearing, however, he clarified that he is no longer pursuing any claims related to his August 2, 2014 arrest and subsequent conviction for violating the no-contact order. Nevertheless, and to ensure a complete record, I will address all of Mr. Pollack's claims as raised in his amended complaint (Dkt. #15) as well as his proposed amended complaint. (Dkt. #59-1.)

         According to Mr. Pollack, probable cause did not exist to arrest him on July 25, 2014. He asserts that Detective Miller's Arrest Affidavit (Dkt. #1-1 at 113-115) included false statements. (Id. ¶ 14.) Specifically, Detective Miller recounts in the Arrest Affidavit a conversation she allegedly had with Ms. Rusnik on July 25, 2014, the date of Mr. Pollack's arrest. (Dkt. #1-1 at 115.) Mr. Pollack asserts this conversation never took place, and has provided a sworn affidavit in which Ms. Rusnik states she “refused [Detective] Miller the interview the day of [Mr. Pollack's] arrest.” (Dkt. #11-4, #45-5, #59-1 at 35.) Mr. Pollack therefore argues Detective Miller fabricated this conversation. (Dkt. #15 ¶11.) Mr. Pollack further asserts that his wrongful arrest on July 5, 2014 resulted in the wrongful issuance of the no-contact order, and his unfair prosecution for violating it. (E.g. id. at ¶ 58.) He also alleges that the July 25, 2014 arrest set in motion a chain of events that resulted in the collapse of his business. (Dkt. #15 ¶¶16-18, 36.)

         In his Amended Complaint (Dkt. #15), Mr. Pollack asserts six claims against Defendants: (1) seizure lacking probable cause (against Detective Miller); (2) violation of double jeopardy law (against Boulder County); (3) unreasonable seizure (against Detective Miller and Deputy Kellison); (4) exploitation of an illegal arrest and malicious prosecution (against all Defendants); (5) failure to train officers (against all Defendants); and (6) violation of his right to a speedy trial (against Boulder County). (Id.)

         Defendants have moved to dismiss these claims. (Dkt. #24.) They argue: (1) Boulder County is not amenable to suit, and is not responsible for the alleged actions of the District Attorney, the District Court, the Sheriff's Department, or its employees; (2) Mr. Pollack's false arrest claims (claims one and three) and failure to train claim (claim five) are barred by the applicable statute of limitations; (3) Mr. Pollack's double jeopardy and right to a speedy trial claims (claims two and five) are barred under Heck v. Humphrey, 512 U.S. 477 (1994); (4) Mr. Pollack has failed to allege all elements of a malicious prosecution claim (claim four); and (5) Deputy Kellison and Investigator Miller are entitled to qualified immunity. (Id.)

         Mr. Pollack filed an opposition to Defendants' motion to dismiss. (#35.) He also filed a motion for leave to amend his complaint. (Dkt. #59.) In his proposed amended complaint (Dkt. #59-1), Mr. Pollack withdrew his claims against Deputy Kellison, and withdrew his claims for double jeopardy (claim two) and violation of his right to a speedy trial (claim five). (Id.) He also added a claim for “judicial deception, ” and a claim “for declaratory and injunctive relief from Boulder County for its deliberate indifferent failure to adopt a policy necessary to prevent constitutional violations.” (Dkt. #59 at 2.) Finally, Mr. Pollack's proposed amended complaint specifically asserts a malicious prosecution claim in relation to his July 25, 2014 arrest. (Dkt. #59-1 ¶¶ 71-93.)

         Defendants' oppose Mr. Pollack's motion for leave to amend, arguing it should be denied as futile and for undue delay. (Dkt. #64.)

         II. Legal Standards

         A. Motion to Dismiss Under Fed.R.Civ.P. 12(b)(6)

         Dismissal is appropriate under Rule 12(b)(6) if the plaintiff fails to state a claim upon which relief can be granted. To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility in this context means the plaintiff has pled enough factual content to allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The plausibility standard is not a probability requirement-“it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

         Although “[a] court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff, ” Hall v. Bellmon, 935 F.2d 1106, 1108 (10th Cir.1991), the court need not accept legal conclusions, Iqbal, 556 U.S. at 678, or conclusory allegations without supporting factual averments, Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir.1998). Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, ” and “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (citation omitted).

         In ruling on a motion to dismiss, “courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on [a] motion[] to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” In re Gold Res. Corp. Sec. Litig., 957 F.Supp.2d 1284, 1291 (D. Colo. 2013), aff'd, 776 F.3d 1103 (10th Cir. 2015).

         B. Motion for Leave to Amend

         After a responsive pleading has been served, “a party may amend its pleadings only with the opposing party's written consent or the court's leave”. Fed R. Civ. P. 15(a)(2). The Court has the discretion whether to grant a motion seeking leave to amend, and leave should be freely granted where justice requires. Id.; Anderson v. Merrill Lynch Pierce Fenner & Smith Inc., 521 F.3d 1278, 1288 (10th Cir. 2008). The Court may exercise its discretion to deny a motion to amend upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by previously allowed amendments, or futility of the amendment. Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir.1993). “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal. . . .The relevant standard in determining whether claims are futile is the same standard that is applied to a motion to dismiss under Fed.R.Civ.P. 12(b)(6).” Dorough v. Am. Family Mut. Ins. Co., No. 15-CV-02388-MSK-KMT, 2016 WL 1426968, at *2 (D. Colo. Apr. 11, 2016).

         III. Analysis

         A. Defendants' Motion to Dismiss (Dkt. #24)

         As noted above, Defendants have moved to dismiss all six claims asserted against them by Plaintiff in his Amended Complaint. (Dkt. #15.) Because this case is before me on a Rule 12(b)(6) motion, my analysis is limited to the facts alleged and positive inferences in favor of plaintiff. However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall, 935 F.2d at 1110.

         1. Boulder County is not Amenable to Suit, and is Not Responsible for Actions by the District Attorney, State Courts, or the Sheriff's Department

         Mr. Pollack has asserted four claims against Boulder County: double jeopardy (claim two), exploitation of illegal arrest, malicious prosecution (claim four), failure to train (claim five), and violation of his right to a speedy trial (claim six). In Colorado, however, a county may only be sued as “the board of county commissioners of the county ___.” Colo. Rev. Stat. § 30-11-105. As a result, lawsuits against a county under any other name are a nullity. Calahan v. Jefferson Cty., 429 P.2d 301, 302 (Colo. 1967).

         Even if Mr. Pollack were to amend his complaint to name the Board of County Commissioners of the County of Boulder, his claim would still fail because the Board cannot as a matter of law be held responsible for any of the alleged conduct forming the bases for these claims. As Defendants point out, Mr. “Pollack's theory of relief against Boulder County is premised on the legally incorrect assumption that there is a ‘Boulder County justice enforcement division' that includes ‘sheriffs, prosecutors, [and] judges, '” all of whom, according to Mr. Pollack, “were complicit in carrying out what they knew or ought to have known to be an ill-founded and unnecessary prosecution.” (Dkt. #24 at 4; Dkt #15 ¶ 145.)

         In this regard, Mr. Pollack seeks to hold Boulder County responsible for how the “proceedings of law [we]re administered” (Dkt. #15 ¶ 150), for its alleged failure to provide adequate oversight of the charges brought against him (id.), and for “implicitly encouraging and supporting [his] continued prosecution” for violating the no-contact order. (Id. ¶ 151, and at ¶ 96 (County responsible for damages arising from “the extension of the prosecution beyond the dismissal of the first case.”).) He alleges the prosecution's decisions were “supported implicitly by the County's policies” (id. ¶ 153), and thus Boulder County should be held responsible for its “failure to provide a fair and impartial administration of justice.” (Id. ¶¶ 36, 154.) Mr. Pollack also alleges that Boulder County should be held responsible for failing to train police officers who work for the Sheriff's Department. (Id. ¶ 132.)

         Neither Boulder County, nor the Boulder County Board of County Commissioners, may be held liable for actions allegedly taken by the Sheriff's Department or its employees “because under Colorado law a Board lacks the power to control the hiring, termination, or supervision of a Sheriff's employees, or otherwise control the terms and conditions of their employment.” Bristol v. Bd. Of Cty. Comm'rs, 312 F.3d 1213, 1215 (10th Cir. 2002) (explaining that under the Colorado constitution, the County Sheriff is a distinct position, separate from the Board of County Commissioners). Because the Boulder County District Attorney's Office is an arm of the state, rather than a political subdivision of Boulder County, its conduct and activities also cannot be imputed to the Boulder County Board of County Commissioners. See, e.g., Anderson v. Adams County, 592 P.2d 3, 4 (Colo.App. 1978) (“The district attorney is a state officer serving a particular judicial district, independent of the county government, with authority to hire and fire his own employees”), as cited in Bragg v. Office of the Dist. Atty., Thirteenth Judicial Dist., 704 F.Supp.2d 1032, 1065 (D. Colo. 2009).

         To the extent Mr. Pollack is attempting to sue Boulder County for decisions made by the state court judge who presided over his April 2016 trial, this claim fails as well. Colorado state district court judges are appointed by the governor, and neither Boulder County nor the Boulder County Board of County Commissioners has any authority, control, or responsibility for actions taken by state district court judges who preside over cases in Boulder County. In addition, “state court judges are absolutely immune from monetary damages claims for actions taken in their judicial capacity, unless the actions are taken in the complete absence of all jurisdiction.” Sawyer v. Gorman, 317 Fed.Appx. 725, 727 (10th Cir. 2008). Here, all actions taken by the judge-for example, not allowing the jury to hear certain evidence, and allowing the prosecution to use the term “protection” (Dkt. #15 ¶¶ 84, 85)-“clearly implicate actions taken in the judge[']s[] judicial capacity, and also not in the absence of all jurisdiction, ” and therefore the judge-and in turn Boulder County and its Board- is “absolutely immune from [Mr. Pollack's] damages claim.” Id. at 728.

         Even assuming Mr. Pollack had properly sued the Sheriff's Department in its official capacity, dismissal of Mr. Pollack's claims would still be warranted.

         Although section 1983 generally applies only to natural persons, the Supreme Court has held that municipalities and other local governmental bodies are “persons” within the meaning of 42 U.S.C. § 1983, and thus may be held liable under it. Monell v. Dep't. of Soc. Servs., 436 U.S. 658, 690 (1978). To assert official capacity claims under Monell, Mr. Pollack must allege non-conclusory facts sufficient to demonstrate that (1) a Sheriff's Department employee committed a constitutional violation; and (2) a custom or policy of the Sheriff's Department was the moving force causing the alleged deprivation. Cordova v. Aragon,569 F.3d 1183, 1193-94 (10th Cir. 2009). Although Mr. Pollack alleges that Deputy Kellison and Detective Miller ...