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Pollack v. Boulder County

United States District Court, D. Colorado

March 21, 2019

REID POLLACK, Plaintiff,
BOULDER COUNTY, POLLY MILLER, personally and in her individual capacity as a Boulder County Sheriff Detective #545, and STEVE KELLISON, personally and in his individual capacity as a Boulder County Sheriff Deputy #565, Defendants.



         This matter is before the Court upon the February 13, 2019 Recommendation (Doc. # 66) by United States Magistrate Judge N. Reid Neureiter that this Court grant Defendants Boulder County, Polly Miller, and Steve Kellison's Motion to Dismiss (Doc. # 24) and grant in part and deny in part Plaintiff's Motion for Leave to Amend the Complaint (Doc. # 59). Defendant Polly Miller (“Defendant Miller” or “Defendant”) filed an Objection (Doc. # 67) to the Recommendation on February 27, 2019, and Plaintiff filed a Response (Doc. # 68) on March 13, 2019. For the reasons that follow, the Court affirms and adopts the Recommendation, granting Defendants' Motion to Dismiss and granting in part and denying in part Plaintiff's Motion to Amend.

         I. BACKGROUND

         The Magistrate Judge's Recommendation provides a recitation of the factual and procedural background of this dispute and is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Accordingly, this Order will reiterate only what is necessary to address Defendant's objections.

         On July 25, 2014, Defendants Miller and Kellison arrested Plaintiff without a warrant on a domestic violence charge. (Doc. # 66 at 2.) According to the Arrest Affidavit submitted by Defendant Miller, Plaintiff allegedly injured his partner, Karen Rusnik, on June 30, 2014, and she contacted police on July 5, 2014, to report the incident. After being arrested, Plaintiff was released on a bond that included a no-contact order. On August 2, 2014, Plaintiff was arrested for violating that order.

         In October 2015, the domestic violence charge was dismissed. (Id.) According to a motion filed by the Boulder County District Attorney, the charge was dismissed because Ms. Rusnik could not be located. In April 2016, however, a jury found Plaintiff guilty of violating the no-contact order, and his appeal of that conviction was denied.

         Plaintiff's arrests and criminal charges gave rise to the instant civil action. In his proposed amended complaint, Plaintiff alleges that, contrary to the District Attorney's assertions, Ms. Rusnik “was ready and willing to testify but not for the prosecution.” (Doc. # 59-1 ¶ 76.) Plaintiff further alleges that probable cause did not exist to arrest him on July 25, 2014, and that Defendant Miller's Arrest Affidavit included false statements. Additionally, Plaintiff asserts that his wrongful arrest in July 2014 resulted in the wrongful issuance of the no-contact order, and he was unfairly prosecuted for violating that order.

         In his Amended Complaint (Doc. # 15), Plaintiff asserts six claims for relief: (1) seizure lacking probable cause; (2) violation of double jeopardy; (3) unreasonable seizure; (4) exploitation of an illegal arrest and malicious prosecution; (5) failure to train officers; and (6) violation of his right to a speedy trial.

         On March 5, 2018, Defendants filed a Motion to Dismiss. (Doc. # 24.) Plaintiff filed a Response (Doc. # 35) on April 16, 2018, and a Motion for Leave to Amend the Complaint (Doc. # 59) on January 2, 2019. In his proposed amended complaint (Doc. # 59-1), Plaintiff withdrew his claims against Defendant Kellison, his double jeopardy claim, and his speedy trial claim. Additionally, Plaintiff included 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.” (Doc. # 59 at 2.) Finally, Plaintiff asserts a malicious prosecution claim in relation to his July 25, 2014 arrest. (Doc. # 59-1 ¶¶ 71-93.)

         This Court referred both Motions to Magistrate Judge Neureiter. (Doc. ## 25, 56, 60.) Accordingly, the magistrate judge held a hearing on both Motions on February 7, 2019, and issued a Recommendation (Doc. # 66) on February 13, 2019.



         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge's [recommended] disposition that has been properly objected to.” An objection is properly made if it is both timely and specific. United States v. One Parcel of Real Property Known As 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996). In conducting its review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).

         B. P ...

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