United States District Court, D. Colorado
REPORT & RECOMMENDATION ON MOTION TO DISMISS
(DKT. #24) AND MOTION FOR LEAVE TO AMEND THE COMPLAINT (DKT.
Reid Neureiter, United State Magistrate Judge
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.
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.
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.) 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.)
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.)
Pollack, who is proceeding pro se,  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.)
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.)
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.)
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.)
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
oppose Mr. Pollack's motion for leave to amend, arguing
it should be denied as futile and for undue delay. (Dkt.
Motion to Dismiss Under Fed.R.Civ.P. 12(b)(6)
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
“[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).
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).
Motion for Leave to Amend
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).
Defendants' Motion to Dismiss (Dkt. #24)
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.
Boulder County is not Amenable to Suit, and is Not
Responsible for Actions by the District Attorney, State
Courts, or the Sheriff's Department
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.
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.)
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.)
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).
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.
assuming Mr. Pollack had properly sued the Sheriff's
Department in its official capacity, dismissal of Mr.
Pollack's claims would still be warranted.
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 ...