United States District Court, D. Colorado
ORDER ADOPTING FEBRUARY 13, 2019 RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
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.
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.
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
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.
REVIEWING AN OBJECTION TO A MAGISTRATE JUDGE'S
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.”