United States District Court, D. Colorado
A. Brimmer, Chief United States District Judge.
matter is before the Court on plaintiff's objection to
the Recommendation of the United States Magistrate Judge
[Docket No. 40]. The magistrate judge recommends that
plaintiff's claim for malicious prosecution under 42
U.S.C. § 1983 be dismissed for failure to allege that
defendants acted with malice. Docket No. 39 at 7. On December
31, 2018, plaintiff filed an objection to the magistrate
judge's recommendation, Docket No. 40, to which
defendants responded on January 14, 2019. Docket No. 41.
Plaintiff filed a reply on January 28, 2019. Docket No. 42.
background facts of this case are recited in the magistrate
judge's recommendation and will not be repeated here.
See Docket No. 39 at 1-3. In brief, plaintiff filed
this pro se lawsuit on March 31, 2018, alleging that
defendants - two police officers with the Westminster police
department - violated his rights under the First, Fourth, and
Fourteenth Amendments when they arrested him for allegedly
violating an anti-solicitation ordinance. See Docket
No. 1. Plaintiff's operative complaint, filed on June 13,
2018, asserts a single claim against defendants for malicious
prosecution under the Fourth Amendment. Docket No. 8 at 4.
September 26, 2018, defendants moved to dismiss the complaint
based, in part, on the defense of qualified immunity. Docket
No. 29. On December 17, 2018, the magistrate judge
recommended that the motion be granted because plaintiff had
“not alleg[ed] that any action or mistake on the part
of Defendants was taken maliciously” as required to
establish a malicious prosecution claim. See Docket
No. 39 at 6-7 (citing Novitsky v. City of Aurora,
491 F.3d 1244, 1258 (10th Cir. 2007)). In reaching that
conclusion, the magistrate judge relied on plaintiff's
allegations that defendants “actually thought the
private drive to which Plaintiff had been standing on was a
public road, ” the private drive was “paved using
similar-looking asphalt” as that used for public roads,
and defendants testified candidly to facts that undermined
the malicious prosecution charge. Docket No. 39 at 7.
STANDARD OF REVIEW
the magistrate judge's recommendation pertains to a
dispositive motion, the Court will “determine de novo
any part of the magistrate judge's disposition that has
been properly objected to.” Fed.R.Civ.P. 72(b)(3). An
objection is “proper” if it is both timely and
specific. United States v. One Parcel of Real Property
Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th
Cir. 1996). Because plaintiff is proceeding pro se,
the Court will construe his objection and pleadings liberally
without serving as his advocate. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
objection, plaintiff argues that his claim should not be
dismissed because (1) there is no evidence that the officers
conducted an investigation into the public nature of the
drive where plaintiff was arrested, Docket No. 40 at 1-2,
¶ 2; (2) the magistrate judge based his conclusion that
defendants were reasonably mistaken as to the public nature
of the drive on a “faulty premise, ” namely, that
public roads are “predominantly paved, ”
id. at 2-3, ¶ 3; and (3) it is
“irrelevant . . . that the Defendants
‘candidly' answered in the affirmative all
questions presented to them at trial.” Id. at
3, ¶ 4. The Court finds these arguments unpersuasive.
their purported failure to investigate the public nature of
the drive, defendants correctly point out that the
“failure to investigate a matter fully” generally
suggests negligence rather than “a knowing or reckless
disregard for the truth.” Docket No. 41 at 3, ¶ 5
(quoting Stonecipher v. Valles, 759 F.3d 1134, 1142
(10th Cir. 2014)); see also Novitsky, 491 F.3d at
1258-59 (indicating that the malice requirement of a
malicious prosecution claim requires a more culpable mental
state than mere “inadvertence or negligence”).
While plaintiff responds that defendants acted with
“willful blindness” by continuing to assert that
he was “standing on a public road” despite
knowing that the nature of the road was disputed, Docket No.
42 at 1-2, ¶ 2, plaintiff has not demonstrated that
defendants were obligated to “collaborate with an
individual [they suspected] of violating a law to ensure that
[their] belief [was] properly founded.” Docket No. 39
at 9; see Spalsbury v. Sisson, 250 Fed.Appx. 238,
246 (10th Cir. 2007) (unpublished) (“A policeman . . .
is under no obligation to give any credence to a
suspect's story, and even a plausible explanation in no
way requires the officer to forego arrest pending further
investigation if the facts as discovered provide probable
cause.” (internal quotation marks and brackets
omitted)). Even if such an obligation existed, plaintiff has
not shown that defendants' failure to abide by it
satisfies the malice element of his malicious prosecution
claim. See Romero v. Fay, 45 F.3d 1472, 1478-81
(10th Cir. 1995) (holding that defendants' failure to
contact plaintiff's alibi witnesses before or after his
arrest did not establish the deliberate or reckless intent
necessary to support a constitutional violation).
remaining arguments are also unavailing. First, the
magistrate judge did not base his recommendation on a
“stereotype” about “how public roads and
private drives are predominantly paved.” Docket No. 40
at 2. Instead, he relied on plaintiff's own allegation
that the private drive on which he was standing “may
have been paved using similar-looking asphalt as that used in
the production of public roads.” Docket No. 8 at 10,
¶ 11; see also Docket No. 39 at 7 (citing
allegations in the complaint). As to the argument that it is
irrelevant whether defendants “candidly answered in the
affirmative all questions presented to them at trial, ”
Docket No. 40 at 3, ¶ 4, the magistrate judge properly
relied on Novitsky in finding that defendants'
truthful testimony weighed against a finding of malice.
See Novitsky, 491 F.3d at 1258 (holding that
plaintiff had failed to show malice in light of one
officer's “candid testimony during . . . [the]
criminal trial and the second motion to suppress
hearing”). To the extent plaintiff contends that
defendants violated his constitutional rights before
trial by ignoring exculpatory evidence, see
Docket No. 40 at 4, ¶ 4, he is merely repeating the
argument, rejected above, that defendants acted maliciously
by failing to investigate the public/private nature of the
Court has reviewed the remaining, unobjected-to portions of
the recommendation and satisfied itself that there is
“no clear error on the face of the record.”
Fed.R.Civ.P. 72(b), Advisory Committee Notes.